k arin l oevy An Introduction to the Theory of Crisis Containment: The Problem of Emergency and its Paradigmatic Solutions 1 1 The Background Theoretical Question: Can Law Constrain Emergency Measures? The background question that persistently underlies theoretical debates about emergency and legality - certainly in the post 9/ 11 context - is whether law can and whether it should constrain the conduct of government officials responding to crisis� The concerns are sometimes expressed as a tension “of tragic dimensions” between formal liberal and democratic values and a functional necessity to respond effectively to violent or otherwise disastrous events� 2 Many accounts express this tension at the level of an existential paradox - reminiscent of Carl Schmitt’s legal scepticism� Since emergency situations are unpredictable, Schmitt argued, no legal norm can foresee them or constrain in advance the measures that are needed to confront them (2005: 6f�)� Since the possibility of banishing emergency situations is not a legal concern (not a juristic question [7]), every political order ultimately presupposes the existence of an extralegal, absolutist, dictatorial power - embodied in the person of the sovereign - recognized by his ability to decide on the exception (ibid�)� Not surprisingly the recent history of the theory of emergency powers is influenced by these two formulations of the problem of emergencies. On the one hand the American constitutional tradition envisions a pragmatic 1 I thank Mattias Kumm for continuing support and guidance and for his helpful comments on a previous draft� I am also grateful to David Dyzenhaus, David Garland, Ron Harris, Stephan Holmes, Pasquale Pasquino, Victor Ramraj, Yoram Shachar and Marc de Wilde for fruitful discussions and useful comments on earlier versions of this work� Special thanks to the organizers of the Conference “States of Emergency: Interdisciplinary Perspectives on the Dynamics of Crisis” JFK Institute, Free University of Berlin , June 2010, especially to Sonja Schillings, Christoph Raetzsch and Katharina Motyl� 2 A metaphor often invoked to express the gravity of the tension is that of a “suicide pact” - a commitment to preserve and maintain rights, freedoms and liberties must be reconciled with the caution against turning the constitution into a suicide pact (Terminiello v Chicago 1947)� See also Gross & Ni Aolain Law in Times of Crisis (2006: 7) and as the underlying rational of Richard Posner’s Not a Suicide Pact: The Constitution in Times of Emergency (2006)� 4 k arin l oevy tension between constitutional norms and factual necessities� 3 On the other hand, the legal-sceptic philosophical tradition envisions an existential paradox underlying the possibility of legitimate rule� 4 The consequence of the two very different traditions is felt in the persistent unrest and often artificial air of many emergency powers debates� Both formulations seem to draw liberal thinkers to at least two existential difficulties in the jurisprudence of emergency powers. The first concerns law’s ability to effectively contain the crisis; the second concerns law’s ability to effectively contain power� Since both issues seemed especially pressing around the turn of the century (and more so under post 9/ 11 sensibilities) a wave of scholarly work focused on the question of the “state of exception” as the limit of law� 5 Critical theory authors embraced Schmitt’s analysis of emergency powers as a way of pursuing a radical critique of the oppressive histories, logical structures and epistemologies of modern liberal law� 6 Law, describes Giorgio Agamben, in a much cited work, neglects “living beings” by excluding them internally, confining them in zones of exception within but simultaneously expelled from the legal order� 7 In contrast, legal theorists in the post 9/ 11 debate were largely committed to preserving the rule of law and offered grounds to reconstruct emergency laws and policies� Oren Gross, for example, in his vast neo-realist study of the history and politics of emergency powers, accepted 3 The origin of this tradition can be traced to the Framers’ Lockian political theory� See Rossiter 1961: No� 23, 153 (Alexander Hamilton)� Also see Thomas Jefferson 1905: 146; Fatovic 2004a: 429-444; Vermuele 2008. Clinton Rossiter’s Constitutional Dictatorship (2002 [1948]) outlying guidelines for a “dictatorship” established to protect the Constitution can be seen as a culmination of this tradition and is until today the most important American analysis of emergency powers� 4 The legal skeptic tradition may be seen as rooted in nineteenth and early twentieth century legal and political debates about the concept of sovereignty� Carl Schmitt effectively tied his analysis of emergency powers to his position in these debates through an account of the conditions for ‘the Political’� Schmitt’s “emergency paradox” - as portrayed above - is only one aspect of his deliberation on the concept of the Political� In two key texts - The Concept of the Political (1932) and Political Theology (1922) - Schmitt deals with the ontological source (“the nature”) of every political order, that on which every aspect of political order - institutional, legal and cultural is based� This source or condition for all political relations is, according to Schmitt, embodied in the concept of sovereignty as the answer to the paradoxical relationship between law and force (or power)� Only a sovereign’s decision can rescue rule from its position as pure force and law from its hollow form� For English accounts of Schmitt’s thought in the context of his contemporaries’ debates, see for example McCormick 1997, Caldwell 1997, Dyzenhaus 1997� 5 The analysis here is informed by the lively and lengthy exchanges within mostly North American legal and political theory scholars in the post 9/ 11 era partly triggered by the Bush Administration’s position of unfettered discretion in the ‘war on terror’ For the “Schmittian” aspect of the post 9/ 11 debate see Scheuerman 2006� 6 See for example Agamben 1998 and 2005; Hussain 2003. 7 Agamben 1998. Historians contributed to this body of critical work especially by exposing the parallel colonial contexts in which rule by emergency decree was a central aspect of governing� For a discussion of the recent contributions, see review essays: Witt 2007, Benton 2006� An Introduction to the Theory of Crisis Containment 5 Schmitt’s proposition that law cannot accommodate emergency� 8 Confronted by extreme anxiety general norms will fail to respond effectively� The legal order will either try to accommodate the exception or act as if it doesn’t (legally) exist; both approaches risk seepage of the exceptional response into the normal order� In the name of securing a liberal democratic rule of law in view of this contamination, Gross denies the legal basis of emergency conduct and places it normatively in the extra-legal sphere� Provided that state officials will publicly and transparently admit their extralegal conduct and succumb to ex-post checks, Gross believes or hopes that their harmful effect will be restrained� Gross’ “extralegal model” for dealing with emergencies has been subject to considerable criticism, 9 the strongest of which turns practically and theoretically against Gross’ sharp distinction between extralegal emergency and legal normalcy� If indeed emergency cannot be legally contained, how can it be contained extra-legally? Not only that it is not realistic to expect that officials will admit the “extralegality” of their conduct, there is also no reason to believe that extralegal action will not “seep” into the legal order just as legal conduct does� Still, other theorists are attracted to Gross’ logic of the extra-legality of emergency response� Mark Tushnet, for example, agrees with Gross (and Schmitt) that emergency acts disguised as limited by the rule of law are often actually unlimited state power� But, he denies Gross’ restraining retrospective legal mechanisms� Only public action, through the institutions of “ordinary politics” and not legal responses, can prevent the abuse of emergency powers� Tushnet argues that a political constitution, one that is based on a mobilized citizenry, is the normatively correct response to law’s admitted inability to restrain the emergency (2005; 2008). While Tushnet’s proposal moves the debate further away from legality, toward a vision of democratic politics, David Dyzenhaus leads us back to it� Only the principle of legality, he argues, confronting Schmitt’s (and Gross’) legal skepticism, can (and must) constrain emergency� According to Dyzenhaus, moral resources and law’s authority can be maintained even under great stress by creative institutional experiments, provided that there is a willingness to loosen some formalistic doctrines such as the separation of powers� 10 Alongside these highly theoretical debates there are many accounts that go beyond the question of the limits of law and try to deal with the more practical questions at the legal foreground� Acting on the assumption that the rule of law must be preserved under extreme political peril, they ask: what kind of institutional structures might better preserve the rule of law in such conditions? Are ex-post measures like judicial review better than ex- 8 Gross 2003, Gross & Ni Aolain 2006, Gross 2008. 9 Dyzenhaus 2005 and 2006a; Posner & Vermeule 2005� 10 Dyzenhaus’ formulation of the legality model runs across a number of his recent texts� I will refer to: Dyzenhaus 2005, 2006a, 2006b, 2007a, 2007b, 2008. 6 k arin l oevy ante legislative (and specifically constitutional) address? What are the right balancing norms and mechanisms between security and human rights? Are there non-derogable rights even in emergency situations? 11 2 Extralegal, Legal and Exceptional Answers: The Paradigmatic Models of Normative Containment As the initial shock of the terrorist attacks on the United States waned and the Bush administration’s legal and political position became increasingly unpopular, the debates over emergency measures gradually moved away from the question of the possibility and the desirability of legal constraint of emergency powers� 12 The Obama administration has tied its position on security with a commitment to legality as a mirror image of its predecessor� 13 Still, it is hardly a baseless prediction that visions of emergency as the limit of law will resurface in the occasion of future national catastrophes� 14 The two distinct traditions that underlie intuitions about the limit of law in the context of emergencies will certainly not fade away� In view of this prediction it should be useful to reveal the rationales according to which the question of law’s role in crisis can be answered� There are three broad structures that attempt to explain and solve the emergency paradox: the extralegal, legal and exceptional models� 15 It is important to note 11 For this line of theorizing pragmatic answers to the exception, see for example Bruce Ackerman’s supermajoritarian constitutional procedures (2004), David Cole’s common law defense of judicial precedent (2003; 2004), Ferejohn and Pasquino’s (following Rossiter) relaxed legal freedoms (2004), Tribe and Gudridge’s anti-emergency constitution (2004) and David Dyzenhaus’ notion of deference as respect (2007a)� 12 While the discussions have moved on to various questions of design, it is fair to say that a general consensus has emerged (although not without contestation) according to which US emergency law is or should be structured according to a Neo-Roman model of constitutional dictatorship� For a call to establish the guidelines for such constitutional arrangement see Levinson & Balkin 2010� 13 See Obama 2009� 14 It is striking how many voices in the American debate rely on the assumption that exceptional powers in exceptional times are an inevitable reality that is here to stay� From Clinton Rossiter stating in 1948: “That constitutional dictatorship does have a future in the United States is hardly a matter for discussion” (2002: 306) to Samuel Issacharoff and Richard Pildes pointing to the historical inevitability of legal change towards less emphasis on individual rights in dangerous times (2005: 161)� 15 There are alternative mappings of existing legal and political theories for dealing with emergency� Scheuerman (2006) distinguishes between Schmittian and non-Schmittian theories and between democratic formalists’ procedural and liberal lawyers’ substantial answers� Ferejohn and Pasquino (2004) distinguish between monistic and dualistic models and within the dualistic model they distinguish between constitutional and legislative models� Gross (2003) distinguishes between models of accommodation, “business as usual” models and the extralegal model� Dyzenhaus (2006b) notes the models I propose here but his analysis of the different positions seems to suggest that he distinguishes only between two models - those who acknowledge an extralegal space and those who deny it� The map that I suggest below relies on distinguishing the An Introduction to the Theory of Crisis Containment 7 that these are very broad, archetypal analytical models that imply different ways of thinking the connection between the “core” meaning of liberal politics and liberal law, and the “marginal,” “contingent” need to overcome it� They all attempt to account not only to the technical problem of constraint, but also to its connection to the political stability of a modern collectivity� Eventually I hope to show that the three seemingly contrasting rationales are reflected in legal mechanisms crafted to contain irregular, unexpected, threatening events� To understand and evaluate such mechanisms, a theory of emergency powers must account for the dialectic of containment: the legal management of emergencies and the political possibilities that it produces� 2.1 The Extralegal Model: An Authority Residing Outside the Law Going completely outside the law in appropriate cases preserves, rather than undermines, the rule of law in a way that bending the law to accommodate for catastrophes does not (Gross 2004: 240)� The extralegal model is perhaps the most straightforward answer to the problem of containment� It holds, with Schmitt, that law cannot and should not account for all aspects of the social and political reality� 16 It also agrees with Schmitt that law is not a political concept� In contrast to Schmitt, it denies that this presents an existential problem for liberalism� Liberalism’s political theory has always had a political aspect and not only a rule-of-law aspect� Whenever legality is used as a criterion for the political decision, the effect is either seepage of arbitrariness into the normal system or a collapse in the security of the state or its subjects� 17 Legality must be understood as limited by necessity which is confined to the political aspect of any liberal state. A theory of emergency powers that acknowledges an external political power to decide on the exception and to deal with it is often theoretically based on Locke’s “Prerogative”� There are many things, Locke insisted, “which the law can by no means provide for” (1980: §159) 18 and which must necessarily be left to the discretionary power of the executive� Among these are not only emergencies, or in Locke’s terminology “accidents and necessities,” but also generally situations where the lawmaking is powerless or nonefficient, or where laws are inflexible and therefore harmful (§160). source of political power to deal with the exception� I propose it in order to search for possible structural and political answers to liberal concerns about the effective containment of crisis and power� 16 Among advocates of this model in the post 9/ 11 debates are Gross 2003 and 2008, Gross & Ni Aolain 2006, Tushnet 2005 and 2008, and to an extent Posner (2003: 292-321). 17 This is the two-fold danger that Oren Gross points to when he advocates his version of the extralegal model (2003: 1022-3)� 18 Recent discussions of Locke’s prerogative powers include Medina 2002, Fatovic 2004b, Casson 2008. 8 k arin l oevy Locke’s prerogative, wide and pragmatic, is not just a technical solution to the unexpected, but has a constitutional function within his political theory� 19 The prerogative is a power “in the hands of the Prince to provide for the public good” and later “to act according to discretion, for the public good, without the prescription of Law, and sometimes even against it” (§158; §160). It can therefore be seen either as a constitutional element that is a derivative part of the legal order 20 or an extra-constitutional power that stands alone with its own original source� 21 But Locke’s prerogative does not need any outside authorization� Unlike the Roman institution of dictatorship - which Schmitt favored over a constitutionally authorized sovereignty in Die Diktatur 22 - Locke’s King comes to the exception already holding the prerogative powers� It is not a question of the need to drop law’s constraints that is stressed here; it is that of an (almost) lawmaking power, 23 a moralized power to overcome the law� The constraint, the limitation, comes to the foreground only in the historical perspective of the unfortunate instances of misuse� Only then, ex-post the misuse, the prerogative was historically limited� Indeed, in Locke’s state theory - Parliament and the laws were established in order to limit the prerogative: “[I]n the Infancy of Governments (…) the government was almost all prerogative�” With governors as fathers to them “watching over them for their good” the limitations were put in place to get prerogative determined in cases “which they and their ancestors had left, in the utmost latitude, to the wisdom of those princes who made no other but a right use of it, that is, for the good of their people” (§162). In fact, historically Locke tells us, good princes were dangerous to people’s liberties� They established precedent in the use of the prerogative that was misused by their successors (§166). 19 See Pasquino (1998), who also refers to earlier definitions of the doctrine in English common law tradition. Specifically, he refers to John Cowell’s definition according to which prerogative “ is that especial power, preeminance, or priveledge that the King hath in any kinde, over and above other persons, and above the ordinarie course of the common lawe, in the right of the crowne. ” Pasquino also, in the same context, refers to Albericus Gentilis, Coke, Baron Fleming, Sir Mathew Hale and Henry Parker, who are all early seventeenth century, mostly English, jurists� Some of them were in one way or another involved in English constitutional disputes between Parliament and the Stuart kings over the extent of their claimed prerogative (199f�)� 20 For this interpretation positioned as a direct answer to Schmitt, see McCormick 1998: 238 and Medina 2002: 355. 21 For this interpretation see Corbett 2006, Fatovic 2004b, Mattie 2005, Josephson 2002� 22 See McCormick (1998), who points to the gap between Schmitt’s articulation of the problem of sovereignty in Die Diktatur and in Political Theology � Within one year, Mc- Cormick argues, Schmitt had moved from rejecting a concept of sovereign dictatorship in favor of a commissarial dictatorship to an embrace of the former� 23 See Corbett (2006: 440), where he questions what seems to be a “legislative” power in the prerogative� An Introduction to the Theory of Crisis Containment 9 In view of this historical description, Pasquale Pasquino argues that Locke’s prerogative might be understood as a fourth power positioning itself in relation to the legislative, executive, and federative functions� 24 If understood within the constitutional organization of civil society, which represents the stabilization of the state of nature, prerogative is a naturally given authority (Pasquino 1998: 204). It is not a part of the divine theological creation but already refers to the historical beginnings of society� It is authority “rooted in history (which) must make a compromise with the power of law and with legal government in a modern society, such that the predictability and certainty of law appear as the very conditions of liberty and property; in Locke’s language, the latter being synonymous with human dignity” (205)� What is important to this positioning of source is that discretionary authority is not a legal power and therefore not one of subordination. It reflects the relationship between the people and the king as one of trust� If indeed Locke’s concept of the prerogative power is hooked to the assumption of people entering into the society as rational creatures, these people would never have left their protection to arbitrary power� That is also why they can, if the prerogative is misused by the prince “appeal to heaven” which is Locke’s code to the right to resist (§168). This might indeed be Locke’s answer to the emergency paradox� Protection is guaranteed by a relationship of civil authority between the king and the people� If this relation was bound by legality, it would be arbitrary and submissive� Since, historically and structurally, it is not bound by law, but based on trust, it might be wide and permissive enough to deal with necessities and overcome law’s limitations� This solution is both structural and political� As Pasquino puts it: For Locke, who is nonetheless among the first to theorize a modern concept of law, human beings certainly make history with laws, but the rule of law, cannot put their destiny entirely in their hands� Above, with prerogative, and below, with the right to resist, the political-constitutional system (…) remains open to the exceptional case; to be sure, it stands very far from any “absolutist/ decisionist” political theory, on one hand, and from any “rationalistic” hypothesis, on the other (205)� What the extralegal model reveals is that within the liberal tradition, deep in its foundational roots, there is a complex understanding of law and its exception� In fact, 17th century debates about law and political power were as much a part of the constitutional revolution taking place in England at this important birthplace of modern common law, as it was a part of Weimar’s democratic revolution� But as oppose to the Weimar historical arena, in Locke’s political reality exceptional powers were not understood as abnormal at all� On the contrary, they were understood as fundamental and at least as “normal” as society’s foundation may be� 24 See also Corbett’s argument that the prerogative is distinct from executive power (Corbett 2006: 445)� 10 k arin l oevy 2.2 The Legality Model: Law’s Authority Manifested Under Crisis We cannot understand law itself unless we see law as a project which aspires to realize the values of the rule of law (Dyzenhaus 2006a: 231)� The legality model - denying the existence of a legal category of exception and claiming that law’s resources can accommodate any kind of crisis - is usually described as a “monistic” legalistic stand in favor of pure containment through pure legality� It is often depicted as naïve at best and hypocritical at worst� 25 In view of Schmitt’s forceful criticism of law it was neglected and for many years, probably since Weimar, it was left under-theorized� It was David Dyzenhaus’ response to Oren Gross’ extra-legal measures model that served to highlight the appeal of this alternative model portraying it as legality’s political answer to the problem of containment� 26 Oren Gross has depicted the legality model in what he called the “business as usual” model: Under the Business as Usual model of emergency powers, a state of emergency does not justify a deviation from the “normal” legal system� No special “emergency” powers are introduced either on an ad hoc or a permanent basis� The ordinary legal system already provides the necessary answers to any crisis without the legislative or executive assertion of new or additional governmental powers (Gross & Ni Aolain 2006: 86). 27 Gross argued that this position is dangerously unrealistic� In the face of great calamities all governments will take what they see as necessary measures regardless of whether they ought to: “adopting a Business as Usual model means either being unaware of the reality of emergency management, or ignoring it and knowingly maintaining an illusory façade of normalcy” (ibid� 95)� This view of the legality model as being detrimental to the rule of law because it requires “governmental paralyses” in the name of legality and rights protection, 28 echoes Schmitt’s critic of the sovereignty of law� David Dyzenhaus has been one of Schmitt’s especially attentive readers long before he took part in the “post 9/ 11 emergency powers” debate� 29 He saw the need to deal with Schmitt’s legal and political thought within the Weimar discussions because of their reflection in contemporary legal theory debates about the concept of law (1998: 13). Contemporary legal philosophy, Dyzenhaus explains in the introduction to his edited book on Schmitt’s Critique of Liberalism, has two unstable options to choose from: a Dworkinian conception of an inherent legitimacy of law and a positivist conception of an 25 See for example Gross & Ni Aolain 2006: 94; Zuckerman 2006 . 26 Among other supporters of this model in the post 9/ 11 debate, see for example Cole 2004; Tribe & Gudridge 2004� 27 Later they claim this is a constitutional absolutist position joined by constitutional perfection argument� Gross rightly distinguishes this model from a model of accommodation which acknowledges the normative necessity of change in the constitution in view of crisis� 28 See also Ackerman 2004: 1030� 29 See for example Dyzenhaus 1997, 1998, 1999. An Introduction to the Theory of Crisis Containment 11 external power which utilizes law for good or bad reasons� These two options stem from Hobbes’ question, which is also Schmitt’s question: “How is order possible in the first place given the disintegration of the traditional justifications offered for the legitimacy of supreme power” (5). Hobbes’ answer is a deeply “emergency oriented” one� From the moment of crisis, which is a constitutive moment of political order, the only savior is the sovereign whose positive law - no matter what is its content - is the only rational way to overcome the misery of disorder� Liberals’ response to this tension is to deny that law is in itself legitimate, saying it is good or bad according to its internal (Dworkin) or external (positivists) morality� Meanwhile, and since neither option can provide a sufficient answer to the problem of indeterminacy, the legal norm remains neither positively known nor morally justified (7). 30 With this problem in mind Dyzenhaus is entering the post 9/ 11 emergency powers debates� His aim in portraying a legality model for dealing with crisis is to acknowledge legality as political in order to provide a vision not only of what it means for a constitutional regime to contain emergency, but of what authority means in a Rechtstaat � To answer Schmitt, Dyzenhaus argues, one must understand how law’s claim to authority - in normal times as well as in times of crisis - is both substantively normative and positively valid� Law is not a tool for political morality to use or abuse, it is a project of making real the idea of law - the idea that rule is politically justified only if it is governed by law� In this respect, the question of containment is not the question whether the rule of law can restrain politics, but the question of what is the politics of the rule of law� 31 The rule of law, explains Dyzenhaus, in times of peace as well as in times of crisis, is not a set of procedural, formal doctrines; it is a project of authority� The aim of the project is practical - to make law’s rule into reality� Each one of the participants in the project - the judiciary as well as the legislature and the executive - have an equally important role in the project, they don’t compete over power; they must all cooperate under a regulative assumption that each legal decision taken by another participant is in compliance with the project (2006: 147)� The rule of law therefore is not a theoretical concept to aspire to� It is both existentially constitutive, forming the conditions of “being an authority” (12) and regulative as it governs the interpretation of the decisions of all institutional actors (147)� What is most important in this description of law as a model for dealing with the emergency challenge is the underlying understanding of legal authority� Positive rule through positive law, Dyzenhaus claims, is only authoritative when it is a rule by law� This is the basis for law’s possibilities in emergencies and to its dangers� As the temptation to break the law (for a real or fabricated “necessity”) grows, so does the temptation to justify this conduct by adhering to a formal, hollow concept of legal- 30 For Dyzenhaus’ alternative response to Hobbes, see 2001, 2004, 2009� 31 In “The Politics of the Question of Constituent Power,” Dyzenhaus claims that the question of the inevitability of dualism is one which will be settled not by “legal science” but by “the politics of law” (145)� I suggest here that the legality model is Dyzenhaus’ attempt to show that an alternative politics exists within legal theory� 12 k arin l oevy ity� But this tendency is damaging to legal authority� In any real or alleged emergency, there is a genuine choice whether to respond to the emergency through the rule of law (66)� But because legality is regulative, when a court is called upon to interpret a legislative or an executive decision it ought to assume that the legislature intends to carry on with the project and uphold it rather than oppose it� Of course, the court will not always be able to disregard legislative decisions that defy legality� But even in these cases, when the legislator explicitly resists its role, it can expose such decisions for what they are� It will then, Dyzenhaus suggests, play a rather limited role, not of a Dworkinian Hercules but of a Hobbesian “weatherman”: “alerting the commonwealth to the storm clouds on the horizon when the rule of law which secures the fabric of civil society is put under strain” (12)� When the legality project is undermined - either by the legislature or the executive attempting to create “legal black holes,” with or without the judiciary’s complacency - an internal dualism takes place� In these situations the legal order is divided into two 32 - one that regulates the ordinary situation in accordance with the rule of law, another that gives officials unlimited discretion. Constitutional positivists will not see any legal problem with this internal distinction since as long as there is legislative authorization, officials are formally within the reach of the law� The legality model resists the dualism by requiring unity that challenges any formal separation of powers doctrine� 33 A crucial element in the legality model is the notion that the administrative state has a positive role to play in the rule of law project� It is not there to be limited but to create legal possibilities to deal with emergency situations, possibilities that cannot be achieved by the legislature or the judiciary alone (Dyzenhaus 2005: 73f�)� It is not only that no “branch” has a monopoly on the project or on a part of it, it is also that institutional imagination is in itself a necessity to resist emergencies’ harmful logic (2006a: 172)� For the rule of law to approach its ideals one needs what Dyzenhaus calls “rule of law furniture” in the image of SIAC or the Joint Committee on Human Rights that are concrete embodiments of the normative commitment of the legislature and the executive to the project (230)� Without such “furniture,” Dyzenhaus warns, the role of judges in upholding the rule of law in times of stress is confined to “weathermen.” They are limited to warning us that the executive and the legislative are signaling an “opt out�” 34 32 Referring to Ernst Fraenkel’s account of the Nazi legal order (101)� 33 It is interesting to note that in this sense there is no structural or inherent difference between rule in Nazi Germany and that in post 9/ 11 USA� Both are to some extent dualistic� Avoiding this dualism, moving away from it towards the aim of the project, is what the legality model is all about� 34 In contrast to many grim accounts of judicial automatic deference to the executive in emergency, Dyzenhaus is quite confident about the judiciary’s role in reviewing official conduct in crisis. But Positivist judges may experience the duty to uphold human rights as a crisis which they can finally overcome when exigencies require deference (2006a: 70)� An Introduction to the Theory of Crisis Containment 13 The legality model is meant to shutter the distinction between normal and exceptional by an inherent commitment to a broad legalism� This is an epistemic project of realizing law that creates its own ontology, its own exclusions� One can only know how to react legally in an emergency if one knows how to react legally� And one can only react legally if one reacts within a commitment to law. Under such commitment law can finally be both known and morally justified by an inherent restrictive discrimination. Without such commitment rule cannot be legal or decisive� That is why hesitant liberals in face of emergency will institutionalize extra-legality in the same way that Weimar constitutional scholars - through Article 48 of the Weimar Constitution - institutionalized the harmful determination that “Here is where public law stops” (Schmitt 2005: 4)� If Schmitt argued that the normal order has to be based on a fundamental radical political distinction the legality model assumes a project which creates this distinction upon legality� It forces normality by its valid laws, procedures and institutions� It forces validity by being “a project�” It’s a project of power - but a very specific one - that which relies on the distinction of legality� 2.3 The Exceptional Model: A Mixed Regime [N]o Republic will be perfect, unless it has provided for everything with laws, and provided a remedy for every incident, and fixed the method of governing it. And therefore concluding I say, that those Republics which in urgent perils do not have resort either to a Dictatorship or a similar authority, will always be ruined in grave incidents (Machiavelli 1984: 1.34.). In their contribution to the post-9/ 11 discussions of emergency powers, John Ferejohn and Pasquale Pasquino conclude that legal dualism is a universal feature of at least the non-absolute western tradition (239)� By legal dualism they mean a theory of government that ontologically assumes norm and exception as two different states of the world (226)� They distinguish between “realist dualists” who believe that the distinction between norm and exception is objective and therefore “a neutral, involuntary mechanism can be established in order to detect its appearing or disappearing as a state of the world” (ibid�) and the “skeptic dualists,” (or Schmittians) who deny the epistemological clarity of the distinction� These skeptics, they argue, will insist that some organ must be authorized to declare the exception� The model that they suggest as the basis of a constitutional theory of emergency powers is built on this dualist assumption� A declared existence of exception (as a special threat to a specific political order of a given political community) triggers and justifies exceptional government which is preservative or conservative in that it functions to reestablish the regular government (ibid�)� 14 k arin l oevy This model arguably follows the archetype of the Roman commissarial dictatorship which influenced - although through various anachronistic reinterpretations 35 - modern theory and modern emergency institutions� 36 Specifically, Republican political theory’s adherence to dualism was strongly shaped by Machiavelli who described this institution as a reason for Rome’s longevity: [A] Dictator was made for a (limited) time and not in perpetuity, and only to remove the cause for which he was created; and his authority extended only in being able to decide by himself the ways of meeting that urgent peril, (and) to do things without consultation, and to punish anyone without appeal; but he could do nothing to diminish (the power) of the State, such as would have been the taking away of authority from the Senate or the people, to destroy the ancient institutions of the City and the making of new ones� So that taking together the short time of the Dictatorship and the limited authority that he had, and the Roman People uncorrupted, it was impossible that he should exceed his limits and harm the City (1984: 1.34). This is Machiavelli’s heritage of the Roman model� His admiration of this safe and sound institution is echoed in Neo-Roman and early liberal conceptualization of exception as a functional, temporary and preservative ancient model� 37 What was the Roman institution really like is a very troubling historical question� For one, it was most probably not a legislatively devised institution but a customary one (cf. Manin 2008: 4). The traditional understanding of the model as a legal mechanism is probably not accurate� Machiavelli’s account of what seems to be a prescription for handling the exception within a constitutional order was criticized by Schmitt who argued in Die Diktatur that Machiavelli’s description of the commissarial institution had initiated the process of making dictatorship the very centre of politics, stressing the idea that a technical mechanism can be put in place, by law, to deal with the exceptional situation and leading the whole modern state 35 See in Manin 2008: 3-7. 36 Ferejohn and Pasquino (2004) refer to the modern institutions as the Neo-Roman model stating the difference in that the dictator in the Neo-Roman model enjoys a popular or democratic mandate (213)� Among followers of the Neo-Roman tradition in contemporary debates are for example Rossiter’s classic model for emergency powers in Constitutional Dictatorship (2002 [1948]) and more recently Arato 2002; Campbell 2003: 31-8. A contemporary model of emergency powers, inspired by the Roman model is Bruce Ackerman’s “Emergency Constitution” (2004)� In Before the Next Attack (2006), Ackerman grants the power of declaring a state of emergency to the President, who also wields emergency power� Ackerman follows this tradition in requiring legislative reauthorization of the emergency after a week or two and then re-authorization by ever-increasing legislative majorities� Otherwise, the state of emergency would expire� 37 See, for example, in Blackstone’s writing on the suspension of habeas corpus in English constitutional law: “As the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger…� In like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with its liberty for a while in order to preserve it forever” (132)� An Introduction to the Theory of Crisis Containment 15 theory to be developed out of a theory of dictatorship� 38 Without laying out a modern state theory, Machiavelli is responsible, said Schmitt, for shifting the classical notion which was wholly commissarial to a modern expansionist dictatorship by a sovereign: [A]s the practical task of early modern state builders becomes the expansion of political power through the prosecution of boundary defining external war and the suppression of internal religious civil war, the normatively unencumbered and technically disposed executive becomes the model of political practice (Mc- Cormick 1998: 222). Civil war and foreign war which were traditionally understood as exceptional circumstances became something else, fundamental, constituting the normal situation and the normal government as legitimate� This normalized exception is ultimately theorized by Hobbes whose sovereign state is the dictatorship whose whole task is in guarding the ever present exception (Mc- Cormick 1998: 75). 39 This historical and theoretical process radicalized as sovereignty becomes popular sovereignty and therefore authority is derived not from a definite individual but a non-definite, inaccessible population. This development also causes emergency actions to be more extreme - as they are supposedly sanctioned by this popular sovereignty� There is now a historical justification for the violent destruction of an old order and the creation of a new one out of nothing: “Sovereign dictatorship becomes the power to perpetually suspend and change political order in the name of an inaccessible people and an eschatological notion of history” (ibid�)� 40 As noted above, in Die Diktatur, Schmitt saw in the Roman institution of commissarial dictatorship “a wise invention of the Roman Republic”: a temporarily bound, functional institution with the sole task of restoring the previously standing legal order (McCormick 1998: 222; 225). John McCormick had argued that Schmitt’s shift from this commissarial model to his more famous sovereign dictatorship model denouncing the possibility of a dual regime reflects a change in his attitude towards the normal order itself: “in the exception, the power of real life breaks through the crust of a mechanism that has become torpid by repetition” (Schmitt 2005: 15)� It is so corrupt by its own mechanism that it is not anymore worth saving but replacing (Mc- Cormick 1998: 224f.). I am not sure that what is described by McCormick as a shift in Schmitt’s portrayal of sovereignty is indeed so dramatic� The problem of sovereignty is important for Schmitt as it is the problem of political authority� In Political Theology he criticizes the liberal denial of this problem which in Die Dikta- 38 McCormick (1998: 221-223) describes this argument referring to Die Diktatur , 6-13� The Communist dictatorship represents for Schmitt the culmination of this modern type of totally unrestrained political action generated by the “merging of a wholly technical activity of dictatorial action with a politics of normalcy in modern political theory and practice” (ibid� 221)� 39 Referring to Schmitt , Die Diktatur, 22-25� 40 Schmitt’s examples are mainly from French revolution and Bolshevik theorists ( Die Diktatur 15-16; 143-45)� 16 k arin l oevy tur he related to modern state building� The move from a clear concept of political authority (Classical or Monarchical) to a vague one is exemplified by the move from commissarial dictatorship to exceptionalism� It is not that he now prefers a sovereign exception to the commissarial one� Instead, he now exposes the impossibility of a commissarial solution within the modern concept of political power� But the search for political authority and the possibility of its stability was not only an aspect of Schmitt’s criticism of liberal constitutionalism but also his main aim as a political thinker� In Constitutional Theory (2007), 41 Schmitt re-introduces the sovereign in the legal and political notion of “constituent powers” which is manifested in the political generation of a constitution and in its destruction� This concept is for Schmitt essential to solving the problem of the exception and achieving a modern political order: The political greatness of the French revolution lies in the fact that despite all its liberal and Rechtstaat principles, the thought of the French people’s political unity did not cease to be the deciding directive even for a moment� It remains indubitable that all separations, divisions, limitations, and means of controlling state power operate only inside the framework of political unity� With this unity, however, even the relative character of all constitutional laws is still indisputable� The constitution was not a contract between the prince and the people or, indeed, between some estate organizations, but rather a political decision affecting the one and indivisible nation determining its own destiny� Every constitution presupposes this unity (2007: 102f� [50 in German ed�])� This presupposed unity of the constitutionalized political order is also the presupposition of the existence of a sovereign� In the case of the Weimar Republic, a liberal constitution presupposed a political decision in its favor� Weimar’s concrete historical circumstances of its constitutional moment - the democratic revolution and specifically the juristic transfer from a monarchical constitution abolished by the elected constituent assembly functioning as a sovereign dictatorship from its first meeting in February 1919 until the promulgation of the Weimar Constitution in August 1919 - was the first time that Germany adopted the democratic doctrine of the constituent power of the people (109 [59)]� But pre-war liberal constitutionalism “which had proved itself a method of formalistic evasion” of the constituent power of the monarch was incapable of registering that fact (107f� [57])� 42 This is the place where Schmitt can help in understanding the political strength of the exceptional model� For Schmitt, in the transition from monarchical to democratic legitimacy, the fundamental event of constitution making is where the political unity is manifested� Moments of exception - constitutional emergencies, force the recognition of the real subject of state power, the real representation of political unity� The political is back in place within the constitutional scheme by the introduction of a duality in the mechanisms of the state� 41 Verfassungslehre , 1928. 42 See also the analyses of Cristi 1998: 188. An Introduction to the Theory of Crisis Containment 17 The political unity is an internal feature of the constitution introducing the sovereign as a legitimate theme for constitutional discussion: The sovereign actions which set in motion the activity of constituent power are constitutional norm violations� They don’t imply the destruction or suppression of the constitution of the whole - on the contrary - such cases confirm constitutional validity - they are justified by particular exceptional and abnormal transitory situations which demonstrate the superiority of the existential over the normative, they force the recognition of sovereignty (Schmitt 2007: 191)� It is now possible to re-read the exceptional model for emergency powers with respect to the question of political power and stability� As in the Roman dictatorship, what is preserved by the dictatorial institutions is not the normal legal order but the normal political order � This doesn’t mean law is exempt from this process. On the contrary, the specific ways by which these institutions are crafted - the specific legal authorizations and limitations - may reflect that which is to be preserved because the authority of the state cannot be separated from its value� For Schmitt, this is exactly how sovereignty rescues the legal thought of the political and the political thought of law from their vicious circles: by creating concrete legal government as political� 43 In “constituent power” he sees “the political will whose power or authority is capable of making the concrete comprehensive decision over the type and form of its own political existence” (2007: 125 [75]) 44 There is always a connection, therefore, between power and norm� Dualism is not inevitable because the fact is separated from the legal norm; it is inevitable because the dialectical relationship between the exceptional situation and the normal one is essential to the political order� What is left unexplained under the exceptional model is how exactly this dialectical relationship works� Schmitt’s answer is unhelpful here because he believes the price to be paid for political order to be possible in a Rechtstaat is that it must fundamentally remain authoritative� In that he undermines the possibilities of the dialectics between norm and exception to produce varied types and forms� For Schmitt, democracy is possible only because it expresses, like monarchy, political absolutism� I believe that this view too easily undermines the creative political work a liberal rule of law has historically done and is still doing in view of its exception� 45 43 See supra note 4� 44 The constitution-making power is based on a concrete political being: “It is based on the political decision concerning the type and form of its own being, which stems from its political being ” (125)� 45 I believe that Schmitt’s analysis in Constitutional Theory does not contradict this suggestion� That the people remain the origin of the political action “the source of all power” does not make constitutionalism static (nor is it part of a theory of political theology)� Constitution making power “expresses itself in continually new forms, producing from itself these ever renewing forms and organizations” (2007: 28 [79]). But what accounts for this “renewal”? Where does it happen and how? Historically, I believe it is the specific institutions in which these processes happen and the mechanisms through which they normalize� Just as a revolutionary mechanism such as “we the people” has 18 k arin l oevy I would suggest that the strength of this model lies not in a direct normative answer to the question of legal constraint but in its ability to historicize the place of emergency powers in public law� Machiavelli’s description of the commissarial model which had indeed influenced the evolution of the modern arrangements was by no means a part of a comprehensive modern state theory� He admired the commissarial model not as a “constitutional arrangement” but as a useful mechanism for the purpose of political longevity� His political thought developed a notion of accidental events as opportunities to make good or bad use of by a ruler whose aim is the longevity of a city� Accordingly he saw in the commissarial arrangement a clever and historically proven tool for governance� In this reading, the exceptional model for emergency powers must be understood as a governmental tool engineered with the sole purpose of the preservation of a given political order� It is not intended to overcome law’s harmful inflexibility; it is not intended to affirm law’s political identity. What was preserved by the Roman dictatorial institutions is not the legal order but the political order� But this doesn’t mean law is exempt from this process� On the contrary, it is strictly a legal process of political preservation� “In a Republic,” Machiavelli asserted, “it should never happen that it is governed by extraordinary methods” (1984: 1.34). The exceptional model takes this recommendation seriously� In a close similarity to the legality model, here too, the normal order is essential to the creation of mechanisms to regularly respond to the extraordinary� The difference is that under the exceptional model the normal order itself is contingent and does not amount to a political project of broad legality� In this respect, the exceptional model provides a thin and unstable answer to the emergency paradox� The mechanisms established for exceptional government are contingent on the specific normal political order and law is a tool of preservation - indeed, an easily breakable tool� The exceptional model condemns us to look at the legal field of emergency management as an arena for an ongoing dialectical interaction between law and politics� The good news is that in this dialectics, the place of law is not strictly marginalized by “politics”� Thus, the interaction itself and not the question which prevails may come to the center of study� been normalized in debates and practices of judicial review (although of course, never fully normalized), so was the conservative mechanism of emergency powers normalized through processes of positivization� Theoretically, though, this latter move is not yet fully accounted for� An Introduction to the Theory of Crisis Containment 19 3 The Dialectic of Containment: Emergency, Legality and Political Possibilities For the moment, we should resist the illegitimate and dangerous expansion of emergency government with whatever means we have at our disposal, constituent power not being among them� But if we succeed, which we probably will because of the weakness and confusion (and obvious economic mismanagement! ) of the executive, if the republic is saved this time around, we should remember that we will never know how close we came to losing it if the external or internal forces opposed to our freedom, al Qaeda or Ashcroft’s disloyal minions, had been stronger (Arato 2002: 476)� In a study of Machiavelli’s use of the term “ accidenti, ” John McCormick argues that “accidents” - not necessarily as disasters but as historically specific occurrences that are hard or impossible to foresee and should be treated depending on their danger or profit and always in time - were the central focus of Machiavelli’s political thought (1993: 889). In this, he claims, and not in contrasting virtue to fortune, Machiavelli was quite radical: He speaks of politics extensively - almost exclusively - in terms of that which is conventionally considered remote� And he speaks of preventing, forestalling, or putting to good use that which is normally thought to be unpredictable or uncontrollable (891). But this obsession with the exceptional - Machiavelli’s awe towards the place of accidents in political life and death - does not end in prescribing an extralegal solution by a “prudent man”� On the contrary, Machiavelli’s primary use of the term “accident” stays within the context of foresight: a strict causal relation which foresight would have prevented or made use of� As he describes the variability of unexpected events in a republic’s life, Machiavelli suggests a variety of ways, mostly mundane and legal ways, to foresee, prevent and deal with them (898). What this insight suggests is that the modern roots of “exception” as a core notion in political thought, does not match well with strict either/ or distinctions� In this early modern context where the exception was introduced to the heart of political thought it was not centered on the argument that the unrestricted nature of political phenomena necessitates an unrestricted political actor� Rather, what exception necessitates is a flexible and functional social and political engineering of foresight and management� This insight is also the conclusion in the above discussion of the different models of answers to the emergency paradox: It is the need for flexibility and management of the extraordinary that is the rational for prerogative power in Locke’s extralegal model� That is why it is broad and limited by law only retrospectively� It is the resources of legality, imaginative and normative, that are to be used in constructing the institutional “furniture,” that Dyzenhaus believes necessary to confront exceptional situations. And finally - it is the regularized manufacturing of “exceptional government” for the sake of securing “normal government” that is the basic feature of an exceptional model� These resourceful efforts to deal with the extraordinary by “managing” 20 k arin l oevy and “containing” it are strongly connected to political order in constitutional states� Whenever modern constitutional states are involved in containing crisis they are also involved in generating distinctions and therefore political promise of identity and stability� In this respect, Schmitt was right that the reality of political life in a modern Rechtstaat is inseparably connected to the possibility of irregularity� But the implication of this connection cannot be grasped under a paradigmatic model of rigid oppositions� Instead, it is the complex solutions that are doing the work here: foreseeing, regulating and engineering solutions to irregularity, imagining crisis and managing it, are to be seen as road maps to the construction and reconstruction of modern political stability� The management of crisis is not “a hole” in the systematic logical mechanism of modern political units such as states� It is a part, quite central part of this mechanism� How should we understand crisis management as an aspect of government in modern states? Is it a conservative aspect, as the Neo- Roman model implies? Is it a revolutionary aspect, as both the legality and the extra-legal model imply? I suggest that these questions may be addressed by a conceptual framework that reads through the fixed oppositions in order to explore the connections between legalized practices of crisis management and processes of political stabilization� It is what happens between the historical prerogative of “good princes” and the people’s “appeal to heaven; ” it is what happens when “rule of law furniture” interact; and it is the connections between governing choices and the longevity of “the City” - that should more clearly and pragmatically be traced� The challenge for a legal and political theory of crisis management is to expose the dialectic of law and crisis in view of the political possibilities that it produces� An Introduction to the Theory of Crisis Containment 21 Works Cited Ackerman, Bruce� “The Emergency Constitution�” Yale Law Journal 113�5 (2004): 1029- 1091� ---. Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism. 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