Democracy and liberalism therefore share an acknowledgment of an unbridgeable gap between political fantasy and reality. This recognition is an essential feature of liberal democracy. The legitimacy of this form of government is based on its proximity to the two visions on which it is based—it is democratic to the extent that it offers people, from time to time, the opportunity to have their say; and liberal insofar as individuals enjoy basic freedoms—and yet it perceives them as symbolic coordinates, which can be approached asymptotically but never met.

The pragmatic compromise in which liberal democracies are anchored, however, is also the source of their permanent discontent. Since no government can fulfill either liberal or democratic fantasies, the trust bestowed upon them by the public is necessarily limited, conditional, and prone to erosion. In a liberal democracy, the ruling power suffers from a kind of “legitimacy deficit” that is likely only to increase over time (although it can shrink no farther than a certain point). Liberal discontent increases whenever the state uses coercion to impose its rule on the individual, while democratic frustration grows in the face of the refusal or inability of the people’s representatives to function as slavish instruments of the electorate’s will. “The more democracy is believed to be the demos of getting what it wants, the more intolerable its frustration seems to be,” writes Kenneth Minogue, a political scientist at the London School of Economics. “The more the people develop opinions on public topics and demand action, the more inevitable will be the disappointment. Politics then becomes an oscillation between the democratic will and the inevitably unsatisfactory outcome.”⁸⁶

Public dissatisfaction is obviously not an exclusive characteristic of democracy. Other types of regimes, too, sometimes provoke opposition among their subjects, particularly if they function poorly. Liberal democracies are unique, however, in that the rejection of authority—or at least distrust of it—is an inexorable part of their essence, regardless of their governments’ accomplishments. In this respect, liberal democracy can be described not only as a government that tolerates disorder, but as a disorder that tolerates government.

The marked anti-authoritarian tendency of modern democratic societies explains their natural aversion to the state of emergency. While these societies are in any case plagued by chronic discontent, the declaration of a state of emergency—even when circumstances justify it—puts them to a severe test. Such a dramatic distancing from its founding ideal, albeit on a temporary basis, is liable to exacerbate the legitimacy deficit of the ruling government to the point of near intolerability. Naturally, in such a state, the government will find it immensely difficult to function effectively for a long period of time. Moreover, since liberal democracy regards itself as a final state—unlike regimes with a utopian ideal, which are constantly “on the way” to their longed-for final stage—it has difficulty justifying oppressive policies as purely temporary expediencies. Every serious infringement of human rights, every exercise of state violence, is viewed by parts of the public as a direct threat to their freedom and welfare, precisely because it ostensibly creates a permanent reality. Thus while an immediate threat to the country’s security may justify such action in the eyes of most citizens, in the absence of such a threat, democratic government would most likely prefer to revert as quickly as possible to a state of “normalcy,” however contentious the public’s understanding of that term may be. The alternative, after all, is running the risk of losing popular support and political authority altogether.

 

It would seem, then, that the concern that the democratic world might descend into a perpetual state of emergency seems radically overstated. Of course, the possibility does exist, and not only on paper: History has shown that liberal democracies do not enjoy complete immunity from the temptations of despotism, and the declaration of a state of emergency may provide those with an authoritarian agenda the opportunity to change irreversibly the rules of the political game.⁸⁸ However, an established democratic tradition, a strong civil society, and broad public recognition of the importance of the rule of law—all typical of most Western societies—considerably reduce the dangers of such a scenario, assuming that there is no dramatic change for the worse in these countries’ standard of living and state of security.⁸⁹

With this in mind, we should take note of the fact that the state of emergency does not always require the suspension of the normal legal order; it may also exist alongside it, in areas under state control but not direct sovereignty. After World War II, for example, the British made frequent use of the apparatus of the state of emergency to quell rebellions and revolutionary disquiet in their colonies and protectorates in Asia and Africa.⁹⁰ More recently, the United States used similar logic to justify stripping detainees held at Guantánamo Bay of their legal rights, claiming that the camp was on foreign soil, and therefore outside the jurisdiction of American courts.⁹¹ In today’s post-colonial, “globalized” age, however, the opportunities to enforce an extra-territorial arrangement of this sort are becoming fewer, on account of both the internal checks to which the democratic state is subjected by both civil society and the courts, and the pressures exerted upon it by the world media and the international community. It is extremely doubtful, for example, that Britain would have been able to maintain a state of emergency of the type that it imposed in Malaya for twelve years between 1948 and 1960 if it had been forced to cope with extensive and critical media coverage, the vociferous protests of human rights organizations, hostile international opinion, and lawsuits in international courts.

In effect, if the democratic world faces a danger of corruption, it does not stem from the possibility of a state of emergency suspending the legal order for an unlimited period of time. If anything, it stems from the blurring of the borders between these two spheres: Under a real threat to the country’s security and the welfare of its public, the law itself may be defiled by statutes that negate individual freedoms.⁹² This is, in fact, a far more realistic scenario than that of the dreaded, apocalyptic vision of a permanent state of emergency, since the transition from a relatively open and free political order to a repressive regime is likely to come about gradually, practically unnoticed, and under the guise of a formal “rule of law.”⁹³

Unfortunately, it does not take a great deal of imagination to envision this kind of process; in fact, it may be happening today. On October 17, 2006 President Bush signed the Military Commissions Act, which had been passed by both houses of Congress the month before. The law, intended to regulate the authority of military tribunals to try “unlawful enemy combatants,” determines that detainees who are described as such, and who are not American citizens—it makes no difference for this purpose whether they are legal residents or not—have no right to challenge their confinement in United States courts.⁹⁴ This legislation has far-reaching implications: It denies these detainees the privilege of requesting that a judge issue a writ of habeas corpus, which has the power to enact a cancellation of their internment if it does not comply with the law’s requirements. A writ of habeas corpus, it is important to note, is one of the pillars of common law tradition, and is considered one of the most ancient and effective legal means of ensuring the freedoms of the individual. Thus the American Constitution specifically states that the privilege of the writ will not be suspended “unless when in cases of rebellion or invasion the public safety may require it”⁹⁵—conditions that, it would be safe to say, did not exist when the Military Commissions Act went into effect.

Israel is without doubt a legal anomaly, a country that has no choice but to maintain a continuous state of emergency and yet, at the same time, abides by the basic rules of liberal democracy—a not inconsiderable achievement, under the circumstances.¹⁰² Indeed, it is highly doubtful whether countries that ever enjoyed “normalcy”—that experienced, in other words, something other than a state of emergency—would have succeeded in performing in this manner for such a long period of time. Yet this accomplishment is hardly cause for celebration: As numerous recent scandals involving Israel’s top political figures have made clear, governmental culture in Israel is extremely unhealthy. Surely the time has come to reconsider some of the wide emergency powers granted to the country’s leaders; after all, such powers might be used not only against Israel’s enemies, but also as a means of oppressing political opponents.

At the end of the day, the state of emergency may best be defined as a necessary evil, and should be treated as such. Democratic governments should take care to make use of this apparatus only if they have no other, equally effective, means at their disposal to deal with the dangers confronting their countries. They must maneuver carefully between two equally undesirable options—enforcing a permanent state of emergency, and incorporating its norms into the law itself—and maintain as far as possible the essential tension between the “enlightened” rule that prevails in peacetime and the oppressive exception employed in times of crisis. Yet, more than any other form of government, liberal democracy is capable of coping successfully with this challenge, since, as we have seen, aversion to the state of emergency is ingrained in its political and legal substructure. This inclination may render liberal democracies more vulnerable in the face of determined enemies—but it demonstrates, too, that they are an end worth fighting for.

Assaf Sagiv is the Senior Editor of Azure.

 

1. See Titus Livius, The Early History of Rome, trans. Aubrey de Sיlincourt (Middlesex: Penguin, 1994), pp. 101, 124-125.

2. Nomi Claire Lazar, “Making Emergencies Safe for Democracy: The Roman Dictatorship and the Rule of Law in the Study of Crisis Government,” Constellations 13 (April 2006), pp. 506-521.

3. The last two dictators, in a formal sense, were Lucius Cornelius Sulla and Gaius Julius Caesar. Unlike their predecessors, they were both declared dictators for life and ruled Rome as despots. As such, they contributed significantly to the decline of the republic and helped usher in the rule of the emperors.

4. On November 13, 2001, President George W. Bush issued a Presidential Order for the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” Under this order, American security organizations began to arrest people suspected of belonging to organizations such as the Taliban and al-Qaida, the majority of whom were in Afghanistan, and a minority in places like Egypt, Bosnia, Indonesia, Thailand, and Gambia. The administration defined these suspects as “unlawful enemy combatants” who were not entitled to the protection of the Geneva Convention, since they do not belong to a regular army. (In June 2006, the American Supreme Court rejected this interpretation. See note 36 below.) Most of the detainees are held in the military camp in Guantánamo, Cuba, and therefore do not even enjoy the rights accorded to prisoners in jails in United States territory. In October 2006, MSNBC reported that out of 775 detainees taken to Guantánamo, about 340 had been released and returned to their countries, 110 were being considered for release, and slightly more than 70 would stand trial. According to these data, then, about 250 men are still being detained for an indeterminate period. “In Limbo: Cases Are Few Against Gitmo Detainees: Only About 70 out of 775 Will Face Military Trials,” MSNBC, October 24, 2006. Likewise, the existence of secret CIA installations, where those suspected of terrorist activities are being held, was exposed by the Washington Post on November 2, 2005. These installations, also known as “black sites,” are scattered all over the world—in Asia, the Middle East, Africa, Europe, and the Indian Ocean. According to the Washington Post, the CIA held around 100 detainees in eight “black sites,” but the precise number remains unknown and may well be higher. Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2, 2005. For a comprehensive discussion of the topic, see also the Amnesty International website: http://web.amnesty.org/library/index/engpol300032006.

6. See, for example, a speech President Bush gave on September 6, 2006, in which he officially admitted the existence of the secret detention installations operated by the CIA. “Bush: Top Terror Suspects to Face Tribunals,” CNN, September 7, 2006.

7. In this context, see the Human Rights Watch report on developments in Britain in 2001: http://hrw.org/wr2k2/europe21.html.

8. See “Riot Emergency Brings Back Curfew Laws of the Colonial Age,” Times Online UK, November 9, 2005, at www.timesonline.co.uk/article/0,,135091863895,00.html; “Troubled France Still Ill at Ease,” BBC News, January 4, 2006, http://news.bbc.co.uk/2/hi/europe/4581332.stm.

9. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago, 2005), pp. 2-3.

10. Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard, 2000), p. 38. This theme was further developed, in light of the American war against terror, in their second book, published in 2004: Multitude: War and Democracy in the Age of Empire (New York: Penguin, 2004).

11. Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004), p. 92.

12. Slavoj Zizek, Welcome to the Desert of the Real: Five Essays on September 11 and Related Dates (London: Verso, 2002), p. 107.

13. Contrary to the commonly held view that draws a parallel between the modern state of emergency and the Roman institution of a constitutional dictator, Agamben locates its sources in two other legal provisions from the period of the republic: The senatus consultum ultimum, a Senate decree that gave the consuls unlimited power to quell rebellion, and the iustitium, which initially marked the suspension of legal business (and later a period of public mourning). Agamben, State of Exception, pp. 41-51.

14. In this article, I have chosen to focus on emergency powers of an executive nature. According to this model, the law empowers the executive to take any actions necessary to defend the country against clear and present dangers, such as invasion, rebellion, or economic crises, but does not permit it to make new laws. For the difference in principle between executive emergency powers and emergency legislative powers, and for a historical review of the institutions of the state of emergency, see Menachem Hofnung, Israel: Security Needs v. the Rule of Law (Jerusalem: Nevo, 1971), pp. 33-49 [Hebrew].

16. Walter Benjamin, “Critique of Violence,” in Peter Demetz, ed., Reflections: Essays, Aphorism, Autobiographical Writings, trans. Edmund Jephcott (New York: Harcourt Brace Jovanovich, 1978), p. 286.

17. Agamben presents a similar argument when he writes that “the juridical order does not originally present itself simply as sanctioning a transgressive fact but instead constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case. This is not punishment of this first act but rather represents its inclusion in the juridical order, violence as a primordial juridical fact (permittit enim lex parem vindictam: ‘for the law allows equitable vengeance’)…. In this sense, the exception is the originary form of law.” See Agamben, Homo Sacer, p. 26.

18. Richard Overy, The Dictators: Hitler’s Germany, Stalin’s Russia (New York: Norton, 2004), p. 459.

19. Overy, Dictators, p. 60.

20. Benjamin, “Critique of Violence,” p. 288.

21. In a lecture he devoted to an analysis of Benjamin’s text, the French theorist Jacques Derrida clarified the argument thusly: “Parliaments live unmindful of the violence from which they sprang. This forgetful denial is not an indication of psychological weakness; it is part and parcel of their status and even their structure. Accordingly, instead of reaching decisions of dimensions proportionate to this violence of government and appropriate to it, they deal with the hypocritical politics of compromise. The concept of compromise, the rejection of open violence, the reliance on latent violence—all these belong to the spirit of violence, to the mentality of violence… that strives to accommodate the opponent’s constraints in order to prevent the worst happening and simultaneously they also tell themselves, with a parliamentary groan, that it is not ideal and could certainly have been better otherwise, and yet it was impossible to do otherwise. Parliamentarianism is therefore dogged by the violence of authority and abandonment of the ideal. It fails to find solutions to political disputes in discussion, debate, and non-violent consultation, or to sum up—in the application of liberal democracy.” Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’” trans. Mary Quaintance, in Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson, eds., Deconstruction and the Possibility of Justice (New York: Routledge, 1992), pp. 47-48.

22. On this point, it is worth addressing a fundamental distinction: Whereas John Locke’s theory is considered the cornerstone of liberal philosophy, and some scholars identify pre-liberal elements in Thomas Hobbes’ theory, Jean-Jacques Rousseau’s ideas, which extol the “general will” of the people, belong to a political tradition that paved the way for totalitarianism. See in this regard Jacob Talmon’s classic work The Origins of Totalitarian Democracy (New York: Fredrick A. Prager, 1960), pp. 38-49.

23. David Hume, “Of the Original Contract,” in Eugene F. Miller, ed., Essays, Moral, Political, and Literary (Indianapolis: Liberty Fund, 1994), p. 469.Similarly, the French philosopher Michel Foucault ironically remarks that Thomas Hobbes “rescued” the theory of the state by presenting the social contract as the precursor of every war and every conquest: “And that is of course why the philosophy of right subsequently rewarded Hobbes with the senatorial title of ‘father of political philosophy.’” Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975-1976, trans. David Macey (London: Penguin, 2004), p. 99.

24. Modern theories of the social contract do not purport to provide either a historical or quasi-historical narrative, but rather to propose a theoretical context that makes it possible to answer questions relating to social justice, the legitimacy of the political order, or the meaning of political commitment. See, for example, John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard, 1971); David Gauthier, Morals by Agreement (Oxford: Oxford, 1986); and Thomas M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard, 1998).

25. In the context of Mesopotamia, see, for example, Moshe Weinfeld, Social Justice in Ancient Israel and in the Ancient Near East (Jerusalem: Magnes, 1995); in the context of Pharaonic Egypt, see Anna Mancini, Ma’at Revealed: Philosophy of Justice in Ancient Egypt (New York: Buenos, 2004).

26. For a discussion of the history of the idea of the rule of law from Plato and Aristotle to our own time, see John Morrow, History of Political Thought: A Thematic Introduction (London: Macmillan, 1998), pp. 274-295.

27. The classic formulation of this notion appears in the writings of English jurist Albert Venn Dicey. According to Dicey, the rule of law means “in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.” Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1961), p. 202.

28. Benjamin Constant, Political Writings, ed. and trans. Biancamaria Fontana (Cambridge: Cambridge, 1988), p. 292.

29. Constant, Political Writings, p. 135.

30. The subject was considered, for example, by the father of liberal theory, John Locke. In the second treatise, Locke discusses the prerogative—an exceptional authority held by the ruler during an emergency: “This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is what is called prerogative. For since in some governments the law-making power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution: And because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities, that may concern the public; or make such Law, as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons, that may come in their way, therefore there is latitude left to the executive power, to do many things of choice, which the laws do not prescribe.” John Locke, Two Treatises of Government [1690], ed. Peter Laslett (Cambridge: Cambridge, 1988), second treatise, p. 375.

31. For a review of recent liberal theoretical literature on the problem of the state of emergency in light of the paradigm of the rule of law, see William Scheuerman, “Emergency Powers and the Rule of Law after 9/11,” Journal of Political Philosophy 14:1 (2006), pp. 61-84.

32. Kim Lane Scheppele, “Law in a Time of Emergency: States of Exception and the Temptations of 9/11,” University of Pennsylvania Journal of Constitutional Law 6:5 (May 2004), pp. 1001-1083.

33. It must be admitted that conflicts of this sort did not happen frequently in the past, but the very potential for them to happen can sometimes act as a deterrent from the executive’s point of view. See in this context George Alexander’s research on the disappointing conduct of the courts during states of emergency in eight countries identified with common law tradition: England, the United States, Canada, New Zealand, Australia, India, Ireland, and South Africa. George J. Alexander, “The Illusory Protection of Human Rights by National Courts During Periods of Emergency,” Human Rights Law Journal 5:1 (1984), pp. 1-65.

34. Rasul v. Bush, 542 U.S. 466 (2004), upheld June 29, 2004.

35. Hamdan v. Rumsfeld, 548 U.S. ___ (2006), upheld June 29, 2006.

36. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), upheld June 28, 2006.

37. For a full discussion of the decision, see http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-6696&friend.

38. With the rise of Hitler to power in 1933, Carl Schmitt, a renowned jurist and former adviser to the governments of the Weimar Republic, joined the National-Socialist Party. His involvement in the party ended in 1936, when the S.S. journal exposed the anti-Nazi stance he held before 1933 and denounced him as an opportunist. After World War II, Schmitt was forbidden to teach in Germany and concentrated on independent research and writing until his death in 1985 at the age of ninety-seven.

39. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, Mass.: MIT, 1985), p. 6.

40. Schmitt, Political Theology, p. 5.

41. Schmitt, Political Theology, pp. 6-7.

42. Schmitt, Political Theology, p. 12.

43. See Article 38 of the Basic Law: The Government, dealing with a “Declaration of a State of Emergency.”

44. See in this context a memorandum submitted by John Bell, an expert in comparative and European law at the University of Cambridge, to the Committee on Constitution of the House of Lords of the British Parliament in December 2005: www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/5120706.htm.

45. Ernst Kantarowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, N.J.: Princeton University, 1957).

46. Claude Lefort, The Political Forms of Modern Society: Bureaucracy, Democracy, Totalitarianism, ed. John B. Thompson (Cambridge, Mass.: MIT, 1986), pp. 303-304.

47. Adi Ophir, “Between the Sanctity of Life and Its Forfeiture: In Place of a Preface to Homo Sacer,” in Shai Lavi, ed., Technologies of Justice: Law, Science, and Society (Tel Aviv: Ramot, 2003), p. 377 [Hebrew].

48. See in this context Arnon Gutfeld, “Eagle Against the Sun at Home: Japanese-American Detention Camps in the United States During World War II,” Zmanim 52 (Spring 1995), pp. 67-79 [Hebrew].

49. Supreme Court decisions on the question of the internment were generally supportive of the American government’s policy. In the most famous—and deplorable—decision, in the case of Korematsu v. United States, the court ruled, by a majority of six to three, that the president and Congress did not overstep their authority when they ordered the expulsion and isolation of Japanese Americans, and that the need to defend the nation against espionage overrode the civil rights of Fred Korematsu, an American of Japanese descent who refused to vacate his residence in California. For the full text of the decision, see http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=323&invol=214.

50. A detailed description of the discussions and conflicts regarding this issue in the American administration can be found in Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (Cambridge, Mass.: Harvard, 2001).

51. Civil Liberties Act of 1988. For the full text, see www.civics-online.org/library/formatted/texts/civilact1988.html.

52. There was obviously a vast difference between the reality of life in the American internment camps and the conditions in the Nazi concentration camps. The Japanese residents in the camps were able to study, work, or even join the army; although life in the camps was difficult, there was no hunger, and no atrocities were committed by the authorities. Gutfeld, “Eagle Against the Sun at Home,” p. 77.

54. Such a vision can even instruct a society that considers itself democratic. According to the famous distinction made by the historian Jacob Talmon, whereas liberal democracy of the type that developed in England and the United States “regards political systems as pragmatic contrivances of human ingenuity and spontaneity,” totalitarian democracy, as it was practiced in France after the revolution, “is based upon the assumption of a sole and exclusive truth in politics,” and “postulates a preordained, harmonious and perfect scheme of things, to which men are irresistibly driven and at which they are bound to arrive.” Talmon, Origins of Totalitarian Democracy, pp. 1-2.

55. The Slovenian theoretician Slavoj Zizek proposes in this context a psychoanalytical description of the process that enables the “socio-ideological edifice” to preserve its consistency by means of nurturing the “fantasy” that demands the sacrifice of an imagined obstacle. According to him, “‘fantasy’ designates an element which ‘sticks out,’ which cannot be integrated into the given symbolic structure, yet which, precisely as such, constitutes its identity… the illusion of the sacrifice is that renunciation of the object will render accessible the intact whole. In the ideological field this paradox finds its clearest articulation in the anti-Semitic concept of the Jew: The Nazi has to sacrifice the Jew in order to be able to maintain the illusion that it is only the ‘Jewish plot’ which prevents the establishment of… society as a harmonious, organic whole.” Slavoj Zizek, Enjoy Your Symptom! Jacques Lacan in Hollywood and Out (New York: Routledge, 1992), pp. 89-90.

56. Hannah Arendt, The Origins of Totalitarianism (New York: Meridian, 1958), p. 425.

57. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers [1788], ed. Isaac Kramnick (Middlesex: Penguin, 1987), No. 10, p. 125. Emphasis in the original.

58. Hamilton, Madison, and Jay, Federalist, No. 10, p. 127.

59. The expression “civil society” has undergone a number of metamorphoses through the generations, and appears in various guises in the works of thinkers such as Locke, Montesquieu, Adam Smith, Hegel, de Tocqueville and Marx. For our purposes, its use in this article is based on its prevailing meaning since the middle of the nineteenth century. For a comprehensive survey of the idea of civil society and its philosophical and sociological history, see, inter alia: Michael Edwards, Civil Society (Cambridge: Polity, 2004); Adam B. Seligman, The Idea of Civil Society (Princeton, N.J.: Princeton, 1992); John Ehrenberg, Civil Society: The Critical History of an Idea (New York: New York University, 1999).

60. Adi Ophir writes that “civil society… is not another system of attachments and communications but an arena for attachments and communications managed in networks whose structuring is unstable and their intertwining has a relatively random and ephemeral character…. The existing networks in the civil society and the arenas of conflict within it have no clear external limit that is antecedent to the activities of attachment and communications and determines them from outside; nor do they have any clear internal rules that predetermine objects of conflict and prizes in competitions, hierarchy of positions, mechanisms of exclusion, legitimate horizons for the exercise of power, and so forth. These constraints obviously exist, but they are not imposed on the interaction in advance; rather, they are determined during it. ” Adi Ophir, “Civil Society in the City that Never Sleeps,” in Yoav Peled and Adi Ophir, eds., Israel: From Mobilized to Civil Society? (Jerusalem: Van Leer Institute, 2001), p. 147 [Hebrew].

61. Yael Yishai, Civil Society in Israel (Jerusalem: Carmel, 2004), p. 28 [Hebrew].

62. Alexis de Tocqueville, Democracy in America (New York: Knopf, 1994), p. 419.

63. See, for example, Jeffrey Isaac, “Civil Society and the Spirit of Revolt,” Dissent 40:3 (Summer 1993), pp. 356-361.

64. Antonio Gramsci, Selections from the Prison Notebooks (London: Elecbook, 2002), p. 502.

65. Gramsci, Selections, p. 104.

66. For this reason, Gramsci believed that the oppressed classes in Western capitalist society must first engage in trench warfare within civil society in order to achieve a cultural and moral “hegemony”—a concept that plays a central role in his thinking—and, from this position, bring about the downfall of the political regime.

67. A fascinating and ironic study of this historical affair can be found in David Caute, The Year of the Barricades: A Journey Through 1968 (New York: Harper and Row, 1988).

68. Lefort, Political Forms of Modern Society, pp. 308-309.

69. Governmentality—a word formed from the combination of “government” and “mentality.”

70. Though Foucault views governmentality and sovereignty as two distinct forms of power, and suggests that the former postdates the latter, he also claims that they can coexist: “Sovereignty is far from being eliminated by the emergence of a new art of government… on the contrary, the problem of sovereignty is made more acute than ever.” Michel Foucault, “Governmentality,” trans. Rosi Braidotti and revised by Colin Gordon, in Graham Burchell, Colin Gordon, and Peter Miller, eds., The Foucault Effect: Studies in Governmentality (London: Harvester Wheatsheaf, 1991), p. 101.

71. Foucault, “Governmentality,” p. 103.

72. It is important to emphasize that the space in which the state of emergency is declared is not devoid of order. The opposite is true: When the law withdraws itself from this space, the naked power of the state rules it with greater force. Carl Schmitt understood this when he wrote that “Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary type.” Schmitt, Political Theology, p. 12.

73. On the tension between liberalism and democracy, see, for example, Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: Norton, 2003).

74. Locke, Two Treatises, Second Treatise, p. 287.

75. Locke, Two Treatises, Second Treatise, pp. 350-353.

76. Locke, Two Treatises, Second Treatise, p. 427.

77. This distinction applies to classical liberalism, which aspires to minimize the authority of the state. Thinkers identified with this tradition are John Stuart Mill, Isaiah Berlin, Friedrich Hayek, and Robert Nozick. Modern liberalism, on the other hand, adopted a social-democratic agenda and designates wider authority to state institutions in order to serve the cause of distributive justice. It is identified mainly with the thought of John Rawls, Ronald Dworkin, Bruce Ackerman, and Thomas Nagel.

78. Friedrich August von Hayek, The Constitution of Liberty (Chicago: University of Chicago, 1960), p. 153.

79. Jean-Jacques Rousseau, The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge, 1997), p. 114.

80. Norberto Bobbio, The Future of Democracy: A Defense of the Rules of the Game, ed. Richard Bellamy, trans. Robert Griffin (Oxford: Polity, 1987), p. 44.

81. Bobbio, Future of Democracy, p. 53.

82. Bobbio, Future of Democracy, pp. 53-54.

83. Hamilton, Madison, and Jay, Federalist, No. 10, p. 126.

84. Hamilton, Madison, and Jay, Federalist, No. 10, p. 126.

85. Joseph Alois Schumpeter, Capitalism, Socialism, and Democracy (London: Allen & Unwin, 1976), p. 295.

86. Kenneth Minogue, “Democracy as a Telos,” in Ellen Frankel Paul, Fred D. Miller Jr., and Jeffrey Paul, eds., Democracy (Cambridge: Cambridge, 2000), p. 213.

87. The expression “manufacturing consent” is identified mainly with the ideas of the radical intellectual Noam Chomsky, who maintains that the media in the West serve as a propaganda tool in the hands of the hegemonous powers in those countries, mainly the government and large corporations. See Noam Chomsky and Edward S. Herman, Manufacturing Consent: The Political Economy of the Mass Media (New York: Pantheon, 1988).

88. In addition to the most famous examples of such a political transformation—the collapse of Italian democracy in 1922 and of the Weimar Republic in 1933—one might also mention the sad fate of regimes set up in Eastern Europe after World War I, most of which became dictatorships and police states. The failure of democracy in Central and Eastern Europe between the two wars can be attributed to a number of factors, the main one being the infectious fear of the rise of communism, which acted as a catalyst for the ascendancy of non-democratic powers, deep social schisms, an inappropriate system of political representation, and a corrupt bureaucracy. Unfortunately, some of these conditions still prevail in Eastern European countries after the collapse of the Soviet bloc, and continue to threaten the democratic future of the region. See Hugh Seton-Watson, Eastern Europe Between the Wars, 1918-1941 (New York: Harper, 1967); and Karl J. Newman, European Democracy Between the Wars, trans. Kenneth Morgan (Notre Dame, Ind.: University of Notre Dame, 1971).

89. The threat of global terror with which the democratic West is currently contending has still not reached a level at which it can be considered a “dramatic change for the worse,” and its influence on daily living conditions in the United States and Europe is still not significant. However, if one of the apocalyptic scenarios sometimes mentioned by security officials or the media actually occurs—for instance, the possibility of a terrorist organization obtaining weapons of mass destruction—this evaluation, and its practical consequences, are subject to change.

90. For the synthesis between the critical theory of the state of emergency from the school of Agamben and post-colonial discourse, see Yehouda Shenhav, “Victims of Sovereignty, the Exceptional, and the State of Emergency: Where Did Imperialist History Disappear To?” Theory and Criticism 29 (Autumn 2006), pp. 205-218 [Hebrew].

91. This contention was rejected by the American Supreme Court in the Rasul v. Bush decision. See note 34 above.

92. My opinion on this point is very close to the arguments raised by Oren Gross, a jurist at the University of Minnesota, who published a number of essays on the legal problem of the state of emergency and of the danger posed to the rule of law by its inclusion in the legal order. See, for example, Oren Gross, “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” Yale Law Journal 112 (2003), pp. 1011-1134.

93. Some of the factors we dealt with in this article, such as the decentralized structure of government in democratic society and its ability to tolerate disorder at a certain level, can also be used as checks on the gradual destruction of the legal order. Their effect, however, will be less than the one they have on the state of emergency, because the process will be labeled legitimate by the law and will happen gradually, dulling the sting of the legal and moral trauma it will entail.

94. The United States Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (October 17, 2006). For the full text, see the Library of Congress site: http://thomas.loc.gov/cgi-bin/bdquery/z?d109:S.3930.

95. United States Constitution, Article 1, Section 9.

96. Article 9(b) of the Law and Administration Ordinance of 1948.

97. According to Article 49 of the second version of the Basic Law: The Government. In the third version of the law, passed in 2001, the restriction of the duration of the state of emergency to one year only was anchored in Article 38.

98. At the time of this writing, the current state of emergency, last renewed on May 31, 2006, should expire on June 13, 2007.

99. To cite a number of outstanding examples: The Prevention of Terrorism Ordinance of 1948; The Emergency Powers (Detention) Law of 1979 (granting the minister of defense the power to order the administrative detention of anyone who endangers the security of the state); the Control on Commodities and Services Law of 1957; and The Emergency Land Requisition (Regulation) Law of 1949. The executive can also use, when necessary, the Defense (Emergency) Regulations of 1945, introduced during the British Mandate and incorporated into Israeli law under Article 11 of The Law and Administration Ordinance of 1948. The regulations included, among other things, the authorizing of military tribunals to try citizens without the right of appeal; authorization to conduct wide-ranging searches; restrictions on migration; closure of areas; and the imposition of curfews and administrative arrest for an unlimited time. The Knesset has repealed some of these regulations over the years, but they have not been completely removed. In fact, they were used during the imposition of martial law on Israeli Arabs between 1949 and 1966, and after the Six Day War they became a means of enforcing order by the Israeli security authorities in the occupied territories. See in this context Hofnung, Israel: Security Needs vs. the Rule of Law, pp. 50-105; Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. 2 (Jerusalem: Schocken, 2005), pp. 936-977 [Hebrew]; and Yuval Yoaz, “State of Emergency: 57 Years and No End in Sight,” Haaretz, June 19, 2005.

100. See article 39(b) of the Basic Law: The Government: “Should the Prime Minister deem it impossible to convene the Knesset, given the existence of an immediate and crucial need to make emergency regulations, he may make such regulations or empower a Minister to make them.” And article 39(c): “Emergency regulations may alter any law, temporarily suspend its effect or introduce conditions, and may also impose or increase taxes or other compulsory payments, unless there be another provision by law.”

101. Hofnung, Israel: Security Needs vs. the Rule of Law, p. 100. The wide compass of emergency legislation in Israel and the fact that it also applies to areas of activity that are not directly connected to national security was discussed by the Supreme Court in 1999, in response to an appeal submitted by the Association for Civil Rights on the subject. The decision, which expressed dissatisfaction with this state of affairs, ordered the state to prepare a detailed working plan to regulate constitutional matters that could and should be distinguished from the means used in a state of emergency. Until now, however, this demand has been only partially met. See Association for Civil Rights in Israel v. Knesset and Government of Israel, Supreme Court decision 3091/99. The full text of the last Supreme Court decision on the subject, in August 2006, can be read at http://elyon1.court.gov.il/files/99/910/030/t28/99030910.t28.pdf.

102. It may be assumed that the Supreme Court’s willingness to intervene in the government’s discretion and to restrict its actions was a decisive force in the policy of relative self-restraint that the executive imposed on itself concerning the use of emergency powers—at least inside the country’s borders. See Rubinstein and Medina, The Constitutional Law of the State of Israel, p. 942.