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Although the ways in which the state of emergency has been manifest have evolved over the generations, the political and legal logic that drives it remains the same as when it was first instituted in ancient Rome.13 Indeed, following the Roman example of a limited “constitutional dictatorship,” the modern state of emergency is intended to allow a government to exercise power unfettered by customary legal norms.14 Although such power lies, theoretically, outside the sphere of law, it is not entirely removed from it, since its use is explained by the need to ensure the survival of the “proper order” embodied in that law. In other words, the violence used by a government during a state of emergency is the exception that sustains the rule.15
The nature of an extra-judicial power that nonetheless bears some kind of positive association with the law was explored by the German Jewish thinker Walter Benjamin, whose fairly vague ruminations on the subject have inspired a string of learned discussions among contemporary philosophers. In his essay “Critique of Violence,” published in 1921, he differentiates between what he calls “law-preserving violence,” which derives its legitimacy from the legal order and is thus bound to its service, and “law-making violence,” which is not anchored in any legal sanction or endorsement. Violence of the latter kind is typical, according to Benjamin, of situations of lawlessness, such as war, from which a new order occasionally arises; sometimes, however, it appears in situations where the rule of law is upheld, and as such is suggestive of the primordial abyss that always hides behind the façade of justice. A typical example of such an event is the imposition of the death penalty, whose purpose, says Benjamin, “is not to punish the infringement of law but to establish new law. For in the exercise of violence over life and death more than in any other legal act, law affirms itself.”16
If we adopt Benjamin’s line of argument, we may identify “law-making violence” in the state of emergency. True, authorities acting on behalf of the state are for the most part empowered by a properly instituted legal order. Moreover, their declared intention is the defense of that order from external or internal threats. Nevertheless, in the absence of normal legal restrictions, the extreme measures they employ to that end evoke a primal, explosive, and unrestrained power that establishes the rule of law even while it acts outside of it.17
This kind of repressive potency is naturally compatible with the tastes of despotic regimes, who rule by fear and by organizing the masses against real or imagined threats. It is no surprise, then, that the creation and establishment of the great totalitarian powers were achieved largely through the imposition of an extended state of emergency. These dictatorships saturated the public discourse with military metaphors, often invoking a “permanent state of civil war” as a pretext for their actions.18 National Socialism’s battle cry, for example, was the struggle against Jewish Bolshevism, while communism extolled the revolutionary campaign against capitalist imperialism. As British historian Richard Aubrey explains, “in neither system was there ever a period of equilibrium. A sense of crisis, of obstacles to overcome, of social wars and military wars, was used to keep both societies in a state of almost permanent mobilization.”19 Only against the backdrop of enduring crisis were these regimes able to justify their existence and to succeed in carrying out horrific acts against their opponents.
Whereas dictatorships exploit—or even create—crises to justify the use of “law-making” power, liberal democracies, by contrast, prefer to downplay their violent origins. Benjamin, who considered himself a Marxist, saw this as a sign of weakness. “When the consciousness of the latent presence of violence in a legal institution disappears, the institution falls into decay,” he wrote. “In our time, parliaments provide an example of this. They offer the familiar, woeful spectacle because they have not remained conscious of the revolutionary forces to which they owe their existence.”20 Benjamin’s criticism is directed against the very essence of parliamentarianism, against the approach that prefers dialogue and compromise to open confrontation with one’s rivals. Of course, the parliamentary mindset, identified primarily with liberal democracy, does not rule out the use of force; it merely prefers to work with the more restrained, domesticated kind of violence found within the rule of law (i.e., law enforcement), rather than resort to “law-making violence” of the sort that seeks to destroy the enemy at any price.21
Even if we reject Benjamin’s affection for Bolshevik-style revolutions, there is certainly truth in his claim that the liberal worldview tends to forget, or prefers to ignore, the violent origins of the law. This finds clear expression in classical social contract theory, which anchors the legitimacy of the political and legal order in an initial rational consensus.22 The theoretical narrative of the “founding agreement” is used as a corrective, and sometimes even a substitute, for the blood-soaked history of state-formation through wars, revolutions, or “ethnic cleansing.” Moreover, this narrative makes it possible for the law to present itself as the fruit of a collective and voluntary undertaking, instead of as the exercise of raw, violent power. This willful delusion aroused the anger of the philosopher David Hume, who wrote in response to the political ideas of John Locke in 1748: “Almost all governments which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any pretense of a fair consent or voluntary subjection of the people.”23
Today, efforts to locate the source of the social order in some original contract are out of fashion among political theorists.24 Yet the attitude behind such efforts—a deep-rooted abhorrence of extra-legal, or pre-legal, violence—continues to be a central feature of liberal political philosophy. To radical thinkers like Benjamin, who revere the revolutionary act against the status quo, this attitude reveals the hypocrisy of bourgeois society, forever trying to conceal its oppressive nature and shady past behind a guise of tolerance. Those with a more favorable view of liberalism, however, are likely to believe that its aversion to naked power stems from a crucial value: The rule of law.
The idea that all authority must obey a code of justice and right behavior was not a modern invention; it appears in the earliest civilizations of the ancient world.25 Yet, only in the last two centuries did there emerge a fully developed ideological paradigm that attempts to subject every mechanism of the state to legal regulation.26 The aim of this new paradigm is to prevent governments from wielding their power arbitrarily, and in so doing sacrifice the basic rights and liberties of man.27 In the words of the nineteenth-century jurist Benjamin Constant, the objective was “the union of men under the empire of the laws.”28 Constant, who offered the first liberal critique of the French Revolution, also correctly understood the danger posed to political freedom by the suspension of the law in times of crisis. In an article he wrote in 1814, he warned against the temptation to declare a state of emergency and extend it on various pretexts: “Presented initially as a last resort, to be used only in infinitely rare circumstances, arbitrary power becomes the solution to all problems and an everyday expedient.”29
Constant’s warning is indicative of the deep-seated suspicion held by liberal thinkers and jurists toward the very idea of a state of emergency. While cognizant of the need for “exceptional” governmental powers during a crisis,30 most reject the argument that such powers are exercised in a legal void.31 Thus do both international law and the constitutions of many countries demand that authorities be extremely mindful of preserving certain legal norms, even—and perhaps mainly—in times of emergency.32 The result is that when a government violates these norms, it may find itself in direct confrontation with the legal system.33 This has been the case, for instance, in the United States, where the president enjoys especially wide-ranging emergency powers. In the last few years, the Supreme Court has demonstrated repeatedly that it is willing to take on the executive branch if it believes that the latter is riding roughshod over basic rights and freedoms. The court ruled, for example, that it has the authority to decide whether foreign subjects are being legally held at Guantánamo Bay;34 that the special military tribunals set up to try “unlawful enemy combatants” held by American forces are in breach of the uniform code of military justice and the Geneva Conventions;35 and that the administration is not entitled to deny detainees with American citizenship minimal legal defense, such as the right to challenge their detention before a judge.36 In this last decision, in the case of Hamdi v. Rumsfeld, Justice Sandra Day O’Connor emphasized that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”37
Though the concept of “the rule of law” can be abused as well, justifying excessive activism on the part of the courts, there is no doubt that it represents one of the most glaring differences between dictatorships and liberal democracies. Tyrants require a state of emergency because it allows them to crush their opponents swiftly and ruthlessly, and to conduct their campaigns unimpeded; to them, it is a permanent working hypothesis. Liberal regimes, on the other hand, see the state of emergency as an infringement upon the proper order of things; from their point of view, the state of emergency is at best a bitter pill, but never part of a healthy diet. In the totalitarian state, the exceptional replaces the ordinary, and the law retreats in the face of arbitrary power until it is but a formality; for states that adopt the rule of law as a fundamental value, however, the effect is quite the opposite.
