States of Emergencies and the Sovereign

Philosophy Forums Society, Government, and Economics
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I wrote this essay for a class, but the subject matter struck a chord with me so I edited a bit to make it suitable for forum discussion. Originally it was much, much longer and loaded with discussions about who said about about who and whether they had a point, but I’ve cut all that garbage out, and boiled the essay to it’s core. However, I should mention that essentially it is an essay summarizing and in part defending the position of Carl Schmitt.

[size=50]The following points are discussed:

* The sovereign exists and is necessary in every nation that possesses an instinct for survival. 
* The sovereign is he who decides when the norms apply, i.e., when a state of emergency incapable of being handled by the existing legal norms exists. 
* The legal structure of a nation, including it's constitution, is not self-authorizing. It is instead contingent on the decision of the sovereign. 
* A decision does not necessarily lead to a dictatorship, although it makes it easy for a dictatorship to come into being.[/size]

A constitution is not the last word on political order, because it can’t handle every single problem a nation will face. No framers of constitutions are omniscient. No one can foreknow of all future dangers, and therefore no one can foretell the actions that must take place to neutralize the threat. One simply put can’t apply a norm to chaos. There could be instances where a state faces an existential threat and where the actions that must be taken to remedy the threat and salvage the state are not provided for in and even contrary to the dictates of a constitution. At such points it is prudent to act without the constitution’s consent. It makes no sense, as Lincoln would put it, to lose a nation at the cost of maintaining the constitution.

But who decides that a state of emergency exists? Who can tell when the existing legal structure is not suited to handle the problem? The question isn’t easily answered, yet what is clear is that when the proverbial shit hits the fan, the decision must be made to suspend the laws so that those tasked with resolving the danger can act in the necessary ways. These actions must remain extra-legal. They can’t be written into the existing legal structure, because that would make those actions legally permissible in a time when the norm is in effect. The nation would thereafter face the danger of collapsing from within.

The person who decides when a state of emergency exists is the sovereign. He stands and acts outside the bounds of the legal from the time the state of emergency is declared until it is decided that the threat no longer exists. Whether the norm is in effect—and thus when normal rules and regulations provided for in a constitution apply—is contingent on the decision of the sovereign that a state of emergency doesn’t exist. A sovereign is a sovereign precisely because he stands above the laws and because he decides when the laws and not his prerogative apply. He is the one who says, “Yes, you can use your laws to resolve some issue,” or, “No, you can’t use the laws; you have to do what I say.”

Existential threats which can only be handled by extra-legal are not imaginary. They are real and will inevitably be faced by every nation. Assuming then the noncontroversial proposition that nations have an instinct and interest in survival, it follows that the sovereign and the decision must also be real and necessary.

When an existential threat presents itself someone will inevitably rise up and declare a state of emergency, that is, in effect permitting himself and/or another body tasked with resolving the crisis to act by fiat for as long as the threat is neutralized. Even nations that don’t have it explicitly clear who gets to say when the norm is or isn’t in effect will by an act of necessity, assuming they have an instinct for survival, give birth to a sovereign. Lacking this course of action, the nation will unavoidably collapse either from without because it won’t allow itself the leeway to handle the danger, or from within, because it will allow itself too much leeway.

Whether the decision to declare a state of emergency ultimately leads to dictatorship in which the person or persons first tasked with the handling of the emergency don’t give up their power even after the threat is neutralized is not a conclusion one can arrive at a priori. To say that it always does is to make a leap reason cannot possibly permit. It isn’t inconceivable that those charged with eliminating the existential threat by extra-legal means should relinquish this power once the threat is eliminated. Of course it isn’t inconceivable that they shouldn’t relinquish such power, but it doesn’t necessary follow that they shouldn’t. Whether it happens depends, in my opinion, on the virtues of those charged with declaring the state of emergency.

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That view seems compatible with virtue ethics – in fact, it’s pretty much what VE would demand. Though I’d say that it isn’t merely the declaration of the state of emergency but also the execution of that state of emergency. It is possible for a state of emergency to warrant the superlegal activities of a sovereign but in addressing the emergency the sovereign goes beyond what the state of emergency actually demands.

That is usually when a dictatorship arises. If we are talking about Carl Schmitt, we may as well talk about Weimar. That state was undeniably in a state of emergency and drastic measures were necessary to salvage the state. But Hitler and the Nazi party overstepped their position. The same can be said of Italy, Spain, Cambodia, and so on.

Now, it may seem sort of silly to talk about “overstepping” when the whole point of a sovereign is that they overstep the legal boundaries of a country. But I think that such boundaries do exist. It is a relative thing and not easily pinpointed but I do believe a sovereign can abuse their privileged position and themselves become a threat to the country in their attempt to save the country. Is the cure worse than the disease?

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Hey Xunzian,
It is possible, and therein lies the rub. How can one strike that balance between giving the sovereign enough extralegal leeway to handle the problem but at the same time limiting him from going overboard with his power? To do this one would have to know of the problem in advance, and of the appropriate response to it, and that’s unfeasible. One solution, proposed by this guy called Oren Gross is this (taken from my essay):

Gross speaks of what he calls the “Extra-Legal Measure” model of handling emergencies. According to his model any government official may act in extralegal ways to handle what they believe is a danger to national security. The catch, however, is that they have to openly and publicly acknowledge their actions, and in turn be afterwards judged by the people on their performance. If the people don’t agree with the actions, the officials may be obliged to resign their positions, face criminal charges, or be subject to impeachment. The advantages of this model are many, says Oren. For one, a constitution is not compromised by those actions taken in extraordinary times. Another is that the officials afforded the capacity to act in extralegal ways are deterred from acting in self-regarding ways. The model eliminates or at least greatly reduces the threat of a dictatorship, because each official who decides to take an extra-legal course of action becomes responsible to the people.

Oren’s model would forgo Schmitt’s need for a sovereign because the decision of when the norm is or isn’t in effect is delegated to any public official whose extra-legal actions are then acknowledged and made public. Hence the sovereign is not one or a few, but anybody in official capacity. And, since whether the norm is in effect depends on some level on the response of the public to the actions of the officials, the power to declare when the norm is or isn’t in effect rests in some degree with the people. The people are sovereign.

One problem with Gross’ model is that it leaves open the possibility that a state actor will choose to not act in the ways he believes are necessary if he also believes that such an action would not be understood by the public. What one judges necessary in times of great stress might not be what the public deems appropriate as they reflect back on it in a state of peace and calm.

Maybe not. Well, it depends, you know. If the disease means immediate destruction of the state, then any solution that prolongs it’s life is better. Reduced freedoms are better than no freedoms at all.

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I’m not sure if it really is something that one can choose.

It sounds naive, but I really think all you can do in cases like that is trust that the person acting as sovereign is a good person. Judgment afterwards seems like a bad idea. By what standards would they be judged? By the laws of country, the very laws they had to disregard to do what had to be done. Unless the position of sovereign is legally recognized but trying to explicitly recognize a sovereign has a very bad historical record. For example, both the Roman and Weimar Republics had provisions for this sort of extra-legal entity and, well, we know how their experiments with republicanism ended. Failing a legal means of becoming a sovereign, the only rational option a sovereign has is to extend their period of sovereignty to correspond with their natural lifespan. That is also a very bad idea, since it is the dictatorship we are trying to avoid.

As for preserving a state for its own sake, I’m not sure that is a valid justification. Sometimes, I think it is better for the state to fragment apart or be conquered than for the state to become an actively malicious entity.

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No, of course not by the laws, but you raise a good point; one which I admit is a problem for Gross’ theory. All things considered it might however be the lesser of the evils, if it does indeed lower or altogether eliminate the possibility of a dictator. By the way, a dictator was originally one tasked to handle a crisis with prerogative power. The term did not have the negative connotations we associate with it today.

One standard could be just the prudence of the actions. Nothing set in stone, obviously. For instance. Bomb situation. One bomb state. You have a guy in custody who you know knows something but won’t talk. Assuming you have some torture technique that works, you decide to use it. I think in hindsight the decision to torture wouldn’t be condemned by people. It seems reasonable enough given the circumstances. But if the guy gives all the information asked of him, and he is still tortured, then that’s something to hold against the sovereign. Just common sense.

It does make it easy for someone to become a permanent dictator, but as I tried to show, the sovereign is indispensable. The threats from without are real. A balance needs to be struck, but I don’t see one. Any limitation on the power of the sovereign to act by fiat puts the nation at risk of the threats from without, because some events might call for an action which is out of the limits placed upon the power of the sovereign. On the other hand such unchecked power can prove itself as dangerous to the nation as the worst outside threat. It’s a double edged sword. What do you do…? :-k

Right, it depends on where the greatest of evils lies. If it’s from without, then a little tightening on civil freedoms, while bad in of itself, is good all things considered. If the it’s from within, then fragmentation of the state might be the best option.

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Yeah, “dictator” was the Roman legal solution to this problem. But it lead to a “dictator perpetuus”. “Emperor” comes from “Imperator” which isn’t even the primary title of Roman Emperors. I mean, “Imperator” was used but it was one of many titles. I forget which term was normally used but I’m 80% certain that “Augustus” was normally used. But Caesar was also used. Because of that, romance languages tend to use some derivative of “imperator” for the supreme executive position. Because of the French conquest of England, words pertaining to courtly life in English veer towards romance languages and hence the English “Emperor” and French “empereur”. In non-romance languages for whatever reason, it veers towards “Caesar” as in the German “Kaiser” and the Russian “Czar”.

Because in the Roman situation, “dictator” applied specifically to military situations during the 20th Century when you’ve got military leaders taking over governments in military coups plus the general climate of neo-classism and a hard on for all things Greek. But because, fuck the Greeks (still in Ottoman possession) Greek sources were available primarily in Latin (It was relatively recently that we started calling the figure “Odysseus” primarily the Greek “Odysseus” and not the Latin “Ulysses”, see Byron and James Joyce – Latin sources were what we had for a long, long time. Damn those Greeks for writing with a funny alphabet.)

Anyway, yeah, the negative connotations of the word “dictator” (one who speaks [for everyone else]) is very modern. But so what?

Yeah, except that torture is a fucking terrible means for obtaining unknown information. On the other hand, it is a fantastic method for verifying information that is already know. That isn’t because new information is generated but rather because if you pull off enough fingernails (or worse) people will admit to anything. Torture is a commonly used but very bad example for why extra-legal means are necessary. Things like the not-wars America has been involved in since Korean (Vietnam being the clearest example) are better examples. Sure, America didn’t declare “war” formally. It was just an extra-legal “conflict” the executive felt was necessary.

And that is why you get the hindsight clusterfuck. I’m having a hard time thinking of a extra-legal conflict America involved itself in that ended up being a good idea. Not just “not exonerated by history” but not even sufficiently popular at the time.

Common sense in these situations is not merely a bitch but is actually generally against the establishment of a sovereign.

Sure, I agree. The balance of that blade is precisely what we are talking about.

See, I don’t agree with that.

The American Civil War was a threat from within. Had that not gone down the way it did, “democracy” as we presently understand it would almost certainly have been viewed as a failed project. Right? You’ve got France, where the narrative of democracy became an autocracy (twice!) and America where it collapsed upon itself. Had the American Civil War not worked out the way it did, right now we’d be talking about “Democracy” the same way most people talk about “Communism” in that it may be a nice idea but it is ultimately unrealistic and unachievable.

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That was just an aside. My main point was to say that although Gross’ theory lacks a definite standard, it is still better than the alternative because it reduces the probability of a sovereign turning into a permanent dictator. It’s other problem is that being held responsible after the fact might deter some officials from acting too extra-legally, even when the situation calls for it…i.e., the blade dulled to prevent it from causing self-harm also prevents it from harming the other.

But these problems combined are not half as bad as the problems of Carl Schmitt’s theory of a sovereign. You yourself mentioned historical instances in which the sword cut the wrong way.

edit: While thinking about this thread, a solution occurred to me; a standard for Gross’ theory. Necessity. An extra-legal act is permissible if the official who took it upon himself to commit the act had good reason to believe the act was necessary to the well-being of society. This seems fine to me on first look…

I know there’s been studies that show torture is ineffective, but it was a thought experiment. Take it for granted that this specific torture method does usually produce good information…doesn’t it then follow from common sense that torture in that specific situation was permissible?

I should mention that there’s no real need to pursue this angle. I’m giving up common sense as the standard. I still think it’s sufficient as a standard (or at least still not as bad as the alternative even if it is insufficient), but I believe I’ve got something better with the necessity thing up above.

I don’t see how this is true. If the premise that existential dangers which cannot be handled by the existing legal order is real and likely is accepted, it follows logically and from common sense that there needs to be someone or some group who has to act in sovereign extralegal capacity to handle the danger. It’s not common sense that’s against the sovereign. It’s just common constitutionalist liberal thought…and you know, that train of thought can easily be charged with being naive thinking that framers of constitutions are omniscient, or that as Schmitt himself put it, they try to apply a norm to chaos.

To be honest I’m not following you with all the historical references…I also don’t see how you can possibly disagree with what I’m saying. Would you really when faced with either brutal enslavement from a conquering foreign nation or having habeas corpus suspended for a while prefer the former to the latter?

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I dunno, I still think we get tied up in values on that one. The Bush Administration felt that extraordinary rendition, torture, and a host of other bad things were “necessary” and they acted extralegally to manifest them. And I think that our failure to go after those responsible for that is downright shameful.

I have no reason to think they acted in bad faith (aside from my not liking nor trusting them) so they did feel these acts were necessary. I don’t think they were; indeed, I think they exacerbated the problems they were supposed to solve. So who is right and who is wrong?

Sure, but I still think that particular thought experiment is sufficiently alienated from reality that it can hardly be used as a justification. Ayn Rand wrote works of fiction where she made her ideology work but that doesn’t mean we should accept it because of those thought experiments. Is it a thought experiment or is it a justification?

Fair point, I’ll rescind my comment.

I was pointing out that oftentimes a sovereign emerges not to deal with an external threat but rather an internal one. But I think I got my wires crossed on that one a bit. You think one thing, then another, then another, and what comes out in nonsensical.

Anyway, I think what you are proposing is a false dilemma. It is possible that being conquered by a foreign nation is better than having a sovereign who overreaches.

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Well, fuck…it seems I need a standard for necessity now. Common sense, maybe? :-" Hear me out. First of all let me clear up a small misunderstanding. I’m not saying extralegal actions are permissible if the officials feel justified. I’m sure Bush felt justified, too. They’re permissible if the person is actually justified, and let me qualify what I mean by actually justified. I don’t mean to imply that justification is factually objective. By actually justified I mean something way weaker than that. Something more human; merely that extralegal action is actually justified just in case a rational person would think so. This is where common sense comes in. If the people judge with their collective common sense [size=20](fuck, did I just refute myself right here?)[/size] that what Bush did was not justified given the circumstances, we could accuse Bush not of criminal charges, but with incompetency, i.e., with being incapable of knowing which action was appropriate.

It’s both. Thought experiments are used as justification all the time. It’s how a lot of theories are discredited. Reliabilisim, as an epistemological theory of justification is discredited with a benevolent demon example, for example. It’s not like thought experiments can’t be justification…

The purpose of my thought experiment was to make the point that one can use common sense to distinguish between justified and unjustified use of extralegal force. I used torture as an example of extralegal force, but there’s plenty others I could have used. Even if I can’t quite think of one right now you can’t possibly think that no extralegal action can ever be justified by common sense.

Okay, actually, here’s one. Think back to the civil war again and how Lincoln suspended habeas corpus in some southern states. Common sense tells us that was reasonable given the circumstances, and common sense also tells me it would it would not have reasonable/justified if he lined up and shot anybody the union suspected of supporting the south. There you have it, a clear example of common sense serving just fine as a standard for justification. And really, even barring common sense as a good standard, you can still make the process democratic. Leave it up to the majority of voters to decide if they approve of the extralegal actions. They can use whatever the hell they want to come to their judgment…the bottom line will be that the sovereign will be held accountable, and he will therefore have to think twice before doing anything too rash with the power anointed him for emergency times.

There will of course be a blurred line, but all things considered, I’d take the blurred line over the permanent dictator any day. I understand Gross’ theory has it’s problems, and I accept them. What I don’t accept is the notion that it’s problems are so great as to make the alternative, i.e., Schmitt’s single sovereign unlimited in power and unaccountable to anybody, a better solution.

Lol. Actually my point is not so sophisticated as to be a false dilemma. I’m just saying you cannot categorically make the claim that the curtailing of freedoms for the purpose of handling a temporary existential threat is always worse than the fragmentation of the nation itself, such that whenever one left with the choice of either curtailing some freedoms or letting the nation be fragmented, one should always choose the latter. There’s some, and in any case at least one, possible situation where it would be better for a nation to suspend habeas corpus or some other freedom (maybe the right to carry weapons) for a limited time in order to avoid losing the nation.

Here’s a crazy example. Suppose China goes crazy and decides all non-Chinese people must be eliminated, so it goes out conquering all other nations and killing everybody. Now, let’s also suppose that the only way Obama sees to avoid the collapse of the USA and the slaughter of all Americans is to suspend, again, habeas corpus. Wouldn’t it be the better option to curtail that right than let everybody die? That’s all I’m saying, man. Rights are just the means for our collective life, liberty, and pursuit of happiness. Despite what some say, the opposite is not true.

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OK Rawls. The notion of Overlapping Consensus is tempting in cases like this but doesn’t that ultimately just boil down to “rational people agree with this because they are rational people”? I don’t think a Contractarian approach works very well when dealing with a sovereign because the sovereign is anti-Contractarian in nature. The whole point is that he violates the rules and norms we’ve all agreed to in order to establish or preserve the greater good. So why jump over the fluff and rest the justification of the sovereign in our notion of the good?

Right, I think thought experiments are useful tools in discrediting theories. However, I think they are less useful in supporting theories because the game is rigged. Just a difference in approach.

Sure, I agree with all that. I do think that there are extralegal actions that can be justified by common sense and also be good. But what worries me are extralegal actions that can be justified by common sense and are not good. The recent debate on torture is a great example of it.

Common sense can really mess you up.

Sure, but what about when he isn’t suspending habeas corpus in some southern states but instead is forcibly relocating and interning everybody that kinda looks like the enemy? In the '40s, common sense told people that such a system would be just dandy!

As for making the process democratic, I see two related problems. Democracy is a slow process and situations demanding a sovereign generally need to be dealt with very quickly. But if the voting happens afterwards chances are the sovereign will be exonerated no matter the situation. There are a variety of reasons why (outlined in the two humorous articles I linked) but it basically boils down to the marriage of the sunk cost fallacy and irrational escalation. Couple those with a little bit of special pleading and suddenly it is OK for an American President to have done some horrible things, even to continue doing them. But other countries had better watch out if they want to try and do the same!

I think Schmitt’s solution is a historical artifact anyway. I have a really hard time believing that any modern regime would create such a creature. There is always lip-service and trappings of accountability, even in modern dictatorships!

Sure, sure. I do think a sovereign is an occasional necessity. But I think we need to be careful about not over systematizing it. For every situation where a sovereign is justified there are several more that are almost exactly the same where a sovereign is not justified. Going back to the example of torture, there are some situations where torture is the appropriate response. They are very, very, very rare but we can take it as a given that they do in fact exist. The problem is that these instances are so specific that we can’t really create a list of rules that would adequately describe them. The whole point of a sovereign is that the right action and the wrong action both lie within the margin of error of what we understand as “just” and “unjust”. Go too far in one direction and they are an oppressive dictator (or at least dictatorial in that situation), too far in the other and they aren’t a sovereign but rather a run-of-the-mill elected official.

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Yes, and it works well because in deciding which extralegal action is prudent, the sovereign will have to judge which extralegal action the nation would find rational. The sovereign becomes the voice of the (rational) people. In other words, a democracy is not necessarily compromised even in times of chaos where the normal legal order is abandoned.

Because our “notion of the good”, by which I think you mean democracy or at least democratic process, affords people a degree of defense against the sovereign.

Are you saying that the problem with common sense is that the people, via it’s use, might in some cases and against their own better judgment, excuse the unjustified actions of the sovereign? Good point, but I think this takes for granted an objective view of justification. That is, it assumes that what the people all think (or the majority thinks) was justified for the sovereign to do, and thus the good to do, wasn’t actually the justified. I think I sidestepped this problem when I implied that the justified is whatever the people say is the justified.

Well, precisely because in retrospect that seems like a bad decision that we would want to hold the sovereign accountable, so that he doesn’t do it again.

So what is it that suffers because of this? The point being made here is, I take it, that there won’t be much accountability in practice even though it exists in theory. Still, what little accountability there is is still better than none. When the shit does hit the fan, and when the legal order is brushed aside so extraordinary actions can be taken in official capacity, I’d want those actors to know that they will at least have to smooth talk their way out of trouble afterwords. That’s better than the alternative, where they can say that as sovereign they are entitled to do whatever they want without having any decision be questioned.

:laughing: Yeah, sounds about right. There’s something refreshing about the honesty of Schmitt.

I think we agree.