The Rule of Crisis

Although there are problems with applying the unexpurgated Hobbes to the demands of modern terrorism and civil war, a toned-down but recognizable version of the theory does lend itself to these kinds of violent challenges to state power. Sober Hobbesianism is my term for the toned-down theory. According to me, this form of Hobbesianism gives security great weight while at the same time limiting the legal repression that is sometimes proposed in the name of security during emergencies. Instead of tracing war to simple difference of opinion, and common or garden self-love, sober Hobbesianism traces war to disagreements in which there are fundamentalist attachments to a point of view or way of life or a person or place. A fundamentalist attachment is an attachment to something one would rather die or kill for than not have. Sober Hobbesianism criminalizes certain expressions of fundamentalist attachments and limits pretexts both for violence and for departures from a normal legal order that simulates some of the features of a liberal order.

It has stood to reason since time immemorial: extraordinary threats call for extraordinary measures. Yet whereas external and domestic threats caused the state of exception to be conceived in terms of time and space, combatting jihadist terrorists calls for an entirely different approach to which the state of exception is hardly suited.

This paper will discuss the American response to Daesh in relation to those of a number of other countries including France and Canada as well as supranational institutions including the UN Security Council and the Council of Europe. It will be suggested that American First Amendment Culture and legislative gridlock have helped prevent the enactment of new emergency type laws enacted in other democracies. Moreover, it will be suggested that such a response may have some virtues compared to European approaches based on emergency powers, less restrained alternatives to the criminal sanction and the regulation of expression.

This article analyzes the category of extreme cases—cases involving catastrophic consequences the avoiding of which requires severe measures (e.g., torture, shooting a plane in 9/11 situations). Our proposal maintains that what is most pernicious is not the violation of moral rules as such but their principled or rule-governed violation. Maintaining a normative distinction between acts performed under the direction of principles/rules, on the one hand, and unprincipled, context-generated acts, acts performed under the force of circumstances, on the other, allows for accommodating the necessity of infringements in extreme cases within a (non-conventional) deontological framework. Agents who perform acts in extreme cases ought not to be guided by rules or principles. Instead, they ought to make particular judgments not governed by rules.

Non-trial-based measures, in particular executive detention, have at various times been resorted to by democracies as part of their counter-terror strategies. Western democracies are facing an unprecedented rise in ‘home-grown’ terrorism; the threats they currently face come mainly from their own citizens. Non-trial-based measures—control orders, TPIMs and now temporary exclusion orders—have been designed to test the limits of human rights’ law, in particular of the substantive rights to liberty, freedom from torture or inhuman or degrading treatment, and to private life, but to seek to avoid violating them. But in so doing, they have tended to rely on a minimising recalibration of such rights, since the choice has been made not to accompany the measures with derogations, after a derogating measure, detention without trial, for use only against non-citizens, was found to breach aspects of the ECHR in 2004. Post-2005 reliance on more repressive non-trial-based measures that would clearly or possibly have necessitated a derogation has been accepted by Parliament, but not so far actioned. As has been pointed out many times, reliance on such measures, as a recourse running alongside the criminal process, tends to undermine the moral legitimacy of the use of state power as compared to the claims of terrorists and represents a departure from expected and assumed adherence to constitutional values in a democracy. The unease with which democracies approach the use of such measures, especially against their own citizens, is the subject of this paper, which focuses on their use and underuse over the past ten years in the UK. It argues that the desire to maintain constitutionality while protecting security creates compromises which mean that use of such measures satisfies neither objective: a cycle arises within which a more repressive iteration of the measure is introduced unaccompanied by a derogation, necessitating a recalibration of rights to accommodate it, combined with executive self-restraint in deploying it; human rights-based court and Parliamentary decisions then ‘ameliorate’ the measure and normalise it, but at the same time arguably diminish its efficacy and it falls further into dis-use; security concerns then demand the reintroduction of a more repressive iteration of the measure, threatening to restart the cycle.

The totalitarian regimes leave sometimes to the next generation a challenge of dealing with legal problems that lawyers will find later difficult to solve within the confines of democratic state governed by the rule of law. The authors analyse this process of coming to terms with the past through the prism of the Polish decree of 13 December 1981 on the Martial law. Two case studies chosen for their analysis show how two supreme Polish courts—The Polish Constitutional Tribunal and the Supreme Court—dealt with this very issue and each came up with its own understanding of how to look back on the martial law. The latter attempted to justify and uphold the judicial decisions made during the application of martial law in Poland, yet doing so, it violated basic tenets of legal axiology. The former, on the other hand, was determined to make good the damage wrought by the Supreme Court but while doing so it overstepped its own competences and in the process became a court of facts, rather than laws. The analysis shows how martial law continues to pose important conceptual and axiological questions and is everything but a matter of the past.

Since its establishment in 1948, Israel has been in a state of war and in extended periods of emergency. The Declaration of Independence founded Israel as a ‘Jewish and democratic’ state, but since the very beginning a ‘state of emergency’ was declared, which is permanent ever since. Furthermore, one-fifth of Israel’s citizens are Arab nationals (Palestinian Israelis) who wish to preserve their culture, religion and language, while sympathizing with the Palestinian nation and the Arab world, with which the state of Israel is in a state of ongoing belligerency. In the 1967 war, Israel occupied populated territories, which created serious debates about the civil status and general fate of the Palestinian population of the West Bank and the Gaza Strip. The Supreme court of Israel allowed Palestinians to appeal against decisions made by the military commanders of the occupied regions, sharply defending the need to protect human rights even in times of emergency. War and terror acts have resulted in an almost daily examination of restrictions of human rights, pressing the need to find the right balance between defending those rights and protecting national security. This paper will present, first, the Israeli model of a state of emergency, the different types of power granted to the executive, its normative framework, and its uses in the past and present as well as parliamentary and judiciary control. Second, it will disclose the difficulties a permanent state of emergency poses: how the ongoing executive power may lead to the misuse of emergency rules by politicians, applying unusual methods and procedures in circumstances that have nothing to do with emergency; how parliamentary control tends to weaken, how power shifts from Parliament to the executive and how emergency legislative tools seem to ‘migrate’ even to constitutional amendments. The article will discuss the unique role of the Supreme court of Israel (sitting as the High court of Justice) as a powerful controller of emergency regulations, measures and decisions. The court’s activist rulings on military and security cases, coupled with its criticism of government powers, have played a most significant role in shaping Israel’s state of emergency. Last, it will analyse the new anti-terrorism law approved on 15 June 2016—a further step within the global war on terror—a law which creates new offences, significantly expands both the state’s counterterrorism powers and its definitions of terrorist organizations and terrorist acts.

Since January 2015, French politics are regularly shaped by the scourge of terrorist operations carried out on its territory. State of emergency was declared in November 2015 and had several time been renewed until October 31st 2017. Its legal regime has been modified and strengthened in both November 2015 and July 2016. The aim of this article is twofold. First, it underscores the tremendous extent of the executive power under state of emergency. Second, it aims at showing how state of emergency leads to paradigm shifts that affect the functioning of the French political powers. This change is not limited to security prevailing over liberty, but it is also apparent in many other fields. For instance, politicians tend to view state of emergency as the means needed to fight against a recurring terrorist danger. State of emergency that has been conceived as a legal answer to a temporary threat tends in France to become permanent. Its very nature is thus modified. Another paradigm shift can be seen in the fate of the balance of power doctrine. The classical doctrine according to which Parliament is expected to defend liberty and to impose limits on executive power tends to be forgotten. Not only every steps have been taken in order to avoid primary judicial review of the 20 November 2015 law. But Parliamentary debates also illustrate how much members of Parliament, under the pressure of a traumatised public opinion, are ready to give the executive power even more prerogatives than what is asked for. State of emergency thus appears as a perilous status: not only for everyday liberties but also because of a hidden danger: it may alter in the long run the normal functioning of public institutions.

The “Etat d’urgence”—the state of emergency in reaction to the terrorist attacks in November 2015—comes from a circumstantial law, adopted on 3 April 1955. This precarious origin has not prevented it from continuing to be the positive law. Although this law limits citizens’ rights and liberties tremendously, the Conseil d’Etat and the Conseil constitutionnel have tolerated state clerk to consolidate this derogation of French common law. This anything goes legal attitude reinforced this situation. The introduction of an a priori (1958) and a posteriori (2008) control of the constitutionality of law has not changed this situation.

The German Basic Law can, in many respects, be read as an answer to the “conditions of the Weimar Republic” that were considered to have contributed to the National Socialist’s course towards totalitarianism. This is also the case as regards the eschewal or repression of the state of emergency during which the regular mechanisms guaranteeing the rule of law no longer fully function. The German 1949 Constitution that established an “actively defensive democracy” on the one hand consciously refrained from providing a state of emergency on the other hand. The 1968 constitutional amendment introducing provisions on the state of tension and the state of defence (Article 80a and Articles 115a–115 l) also consciously avoids taking recourse to the state of emergency. Lastly, neither did the Federal Constitutional Court (BVerfG) integrate the state of emergency into its jurisprudence. Whether in connection with the terrorism of the “Rote Armee Fraktion” (“RAF”) in the 1970s or in connection with the “war on terrorism” after 11 September 2001: The Federal Constitutional Court never developed a special doctrine—deficient with regard to the rule of law—for the review of public, particularly legislative, measures aimed at combating terrorist acts. On the contrary, it defended the rule of law in the light of these new threats from the state and civil society without compromise.