After Paris: Violence and Law
I wrote a short piece for Novara Wire: ‘After Paris: 4 Questions We Need To Ask’. It is intended as a preliminary reflection on how to respond to the attacks, what danger a renewed militarism poses, and how we might act politically. Please do read it. I wrote the body of the piece on Monday, when it was clear that Hollande would ask for an extension of the state of emergency, but it had not yet emerged that he would seek a change to the constitution. We will learn the precise contours of the proposed reforms tomorrow (Wednesday), but as this article suggests, they are likely to follow the lines suggested by the Balladur committee in 2007, in instituting a constitutional category of ‘state of emergency’ (état d’urgence); the state of emergency declared on the 13th is governed by a law passed in 1955, and last used by Chirac in the wake of 2005 riots. Hollande’s stated aim is to modernise the current constitutional regime such that public officials can ‘act according to the rule of law’ but sufficiently tackle what he dubs ‘terrorisme de guerre’ – ‘war terrorism’. Without having seen the exact form of the constitutional changes, two major things have played on my mind about Hollande’s speech: First, the category of ‘war terrorism’ is a clumsy one, which reflects both the new spatial and territorial implications of an asymmetric war, without a state actor or clear demarcations of combatant status. (There is perhaps an implied distinction here, unclear, with other forms of terrorism, either more limited in goal or political outcome.) Along with Hollande’s invocation of Article 42.7 of the Lisbon Treaty, it is obvious that he wants Europe, NATO and the UN to treat these acts as acts of war, even if in a new category. And as such, he will expect new domestic powers to reflect its reality – likely with relatively lengthy emergency terms before mandatory review, and with wide discretion to strip citizenship, constrain freedom of movement and assembly, and enhance warrantless search powers – and perhaps a permanently enhanced National Police. Beyond this, however, the terrorist poses something of a conundrum for legal theorists: I would speculate that we will see a renewed examination of laws governing banditry, piracy, or vagabondage, and an attempt, however awkward, to fit them back into a framework governing interstate conflict. (Some such contortions were undertaken during the Bush administration in the US.) The disjunctions are likely to be huge. Second, however, is an issue concerning special powers and constitutions more generally. The libertarian left has always tended to undervalue such documents, quite rightly citing both their framing of a system of law predicated on inequality and exploitation, and their frequent espousal of values nowhere to be found in practice. However, they do encode certain principles, like separation and limitation of powers, that represent valuable achievements. They are also achievements that are contingent, and far from historically absolute – that is, they are continually challenged by attempts of various state organs to increase the powers granted to them. The gist of Hollande’s position is that he wants a framework to govern states of emergency and states of exception in order to protect democracy – though their deployment might entail some temporary violation of its norms. In any case, he suggests, the passionate commitment of the people and their leaders to democratic virtues will ensure their abuse is unlikely and their duration, in practice, short. But if the history of struggles for democracy on this continent suggest anything to us, it is that it is neither linear in progression, nor is it ever eternally secured. There is no intrinsically democratic ‘spirit’ to which it can be entrusted. Perhaps the same politicians and commentators who applauded struggles for constitutional democracy elsewhere in 2011, and deplore such hasty constitutional amendments in other countries – so often their former colonies – would be wise to apply the same standard of principled scrutiny to their own rulers. That could not be of more importance now.