From The Lesser Evil (Michael Ignatieff, 2003) pp41-4
Emergencies bring into focus two radically different images of the law. In the image personified in Ulysses, law and human rights derive their legitimacy from their status as rules that should not bend to circumstance. In the competing image, to use US. Supreme Court Justice Robert Jackson’s phrase, the constitution cannot be a suicide pact. When suicide threatens – that is, when democracy’s own deliberative slowness threatens it with disaster, or when rights guarantees extended to the honest many frustrate the pursuit of the dangerous few – rulers must act decisively. But can they, as Locke implied, operate beyond the law, or should their prerogative be constrained by law?
In understanding what is at stake in the use of prerogative power in time of emergency, we need to come to grips with the thought of the Weimar legal theorist Carl Schmitt. His jurisprudence was framed in the 1920s by Weimar Germany’s struggle to preserve constitutional democracy in the face of terrorist violence from both sides of the political spectrum. Schmitt understood our question to be this: does the exception save or destroy the rule? Schmitt was emphatic: without the power to declare exceptions, the rule of law cannot survive. ”Sovereign is he,” Schmitt famously wrote, ”who decides the exception.” A state cannot remain sovereign, cannot reliably maintain an internal monopoly of the means of force together with the rule of law, if the president cannot exempt himself upon necessary occasions from constitutional rules that would prevent him from prevailing in a contest of force with the state’s enemies. Schmitt notoriously said that politics was about punishing enemies and rewarding friends. Constitutional regimes, he went on, cannot save themselves from attack unless the friends of constitutionalism withdraw the law’s protections from its enemies.
Schmitt also claimed that the question of whether exceptions destroy or save the rule was actually about what place to give political power and executive authority in the enforcement and defense of law. In his day, he was arguing against the legal positivism that dominated German constitutional thinking and sought to view law as a sphere autonomous from politics by virtue of its formal structure as a system of rules. Schmitt thought this image of law failed to represent the conditions of law’s own creation, in the realm of politics. Since law was never the codification of an abstract set of absolutes but was, rather, the legal ratification, issue by issue, of political agreements between opposing social forces and interests, those who enforce the law were bound to make exceptions, as these forces and interests exerted their influence on the law’s guardians.
In our own day, the defenders of legal invariance are not legal positivists but Civil libertarians. They want to keep law as free as possible from political contamination and interference and believe that law’s legitimacy derives from its capacity to resist political pressures. This might be a realistic expectation in times of peace. But in liberal democracies under attack, matters might stand differently.
Schmitt believed that this image of autonomous law was not merely unrealistic but foolish, since law was the creature of political power. Its enforcement depended entirely on the viability of a particular constitutional order. This seemed only too evident in Weimar, where law’s survival depended on the capacity of a constitutionally elected president to defend an embattled regime by force. Hence, according to Schmitt, rights survive in emergencies to the degree that they enable the particular political regime that defends the constitutional order to survive. Rights that stand in the way of a regime’s survival should be suspended in a time of crisis. The Ulysses metaphor would have made no sense to Schmitt. No regime can afford to tie its hands to the mast and stop its ears with beeswax if the ship of state is being boarded by pirates. Ulysses must untie himself, rally the crew, and fight back.
Confidence in Schmitt’s judgment on these issues is not enhanced by the knowledge that he went on in the 1930s to become an apologist for Hitler. As Oren Gross has shown, in a close reading of Schmitt’s theory, an intellectual project that began in the early 1920s as an attempt to save the Weimar constitution through the use of presidential power became, by the early 1930s, a project to justify extraconstitutional dictatorship.” From defending the president as guardian of the constitution, he ended up defending dictatorial power at any price. This later career suggests the weakness in his legal realism: yes, law is politics – the codification of often shabby compromises between competing groups in the political realm – but it is not just politics. Law ought to encapsulate right as well as might. Law’s commitments to dignity and equal protection are supposed to enable right to prevail over might. The moral content of law that some legal pragmatists and positivists would see as dangerous because it provides a pretext for judicial moralizing and intrusion on legislative authority is, when seen against the catastrophe of Weimar, an essential element to rally moral and political support for constitutional order. Such ethical elements set limits precisely at the point where decisive use of executive authority could shade into extraconstitutional dictatorship. Schmitt’s jurisprudence, in its worship of strong authority, lacked any conception of a constitution as a moral order of liberty. Of themselves, commitments to equal protection and dignity cannot save a society from tyranny during an emergency. But these values can operate as a moral depository to remind citizens, judges, and politicians of the limits that ought to guide a democracy in a time of trial.
In the tradition of liberal constitutionalism that descends from Locke, law’s ultimate protection lay in morality, in the ability of citizens to rise to the defense of law when morality revealed law’s exercise to be unjust. Citizens, judges, and politicians all have moral responsibilities to protect a constitution when it is under attack. Locke’s argument for the necessity of executive prerogative was balanced by the people’s right to take the government back into their own hands when liberty was usurped. In an argument which provided a key justification for the American Revolution, Locke wrote that when prerogative power threatened to ”enslave or destroy” a people, they had the right to ”appeal to Heaven,” and by implication to take up arms to defend their freedom. Locke’s phrase ”appeal to Heaven” implied clearly that the armed defense of liberty was a lesser evil, justified only to avert the greater evil of tyranny and enslavement. The Lockean view is more than a defense of revolution: it clearly prioritizes evils, preferring the risks of disorder to despotism. This moral ranking contrasts signally with Schmitt’s, for whom the greater evil was disorder and Civil war, and for whom dictatorship, in contrast, was the lesser evil.
In 1933, many, though not all, Germans made the same mental choice as Schmitt, believing that dictatorship was a lesser evil than either Communism or Civil war. Yet once a constitutional order sacrifices its commitment to liberty, it quickly sacrifices everything else. The racialized jurisprudence of Nazism, by deliberately severing law from any commitment to equal protection and respect, deprived whole categories of German citizens of their rights, creating the nightmarish legal order in which they could ultimately be deprived of their lives. But this racialized jurisprudence found a willing accomplice in a tradition of German legal positivism and legal realism that sought to disinfest law of ethics.
Human rights emerged from the Holocaust as a rejection of legal positivism, as an attempt to provide citizens with an independent moral standard that would enable them, when the law of their country went mad, to say: this may be legal, but it is not right. It is this belief in the existence of a higher law, to which statutes and constitutions are ultimately answerable, that was so absent in the fervent apologetics of those like Schmitt whose theory of prerogative power divorced law from ethics. The lesson seems clear: even in emergency, even if some liberties must be suspended, a constitutional state must remain answerable to the higher law, a set of standards that protect foundational commitments to the dignity of every person.
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