March 9, 2012

I would like to start by suggesting a collective exercise of revisiting the objectives and questions initially raised by this seminar, so they remain on the background of our discussion of the relationship between emergency and rule of law as proposed by today’s reading. A relationship in which law asserts its capacity of maintaining itself in relation to an exteriority, that is to say by including within the legal system its own exclusion.

This seminar is committed to unpacking the seemingly paradoxical fact that “despite the role of legal institutions in reproducing an unequal international order, demands for global justice continue to be shaped through legal claims.” Therefore, it seeks to address questions such as the relationship between law and justice and, the existence (or not) of an emancipatory potential for law in the pursuit of alternative political futures.

It seems to me that Hussain’s piece offers a variety of concepts and claims which can help us to further advance or complicate our understanding of the questions I just stated, and I will try to point out a few of them. By resorting to the analysis of different episodes involving the use of martial law (and its justification) in the colonial world, Hussain invites us to rethink the way in which we comprehend “the relationship between general rules and particular commands and the relation between modes of violence and legal control in positivist theory and colonial discourse” (p. 95/96). Rather than a relationship of exclusion or negation, he persuades us to think that these two apparently oppositional concepts – rule of law and instance of emergency – are contained in a relationship of supplementarity. Therefore, in order to examine the existing connections between rule of law and emergency, one should not apply the binary logic because here, what seems to be the opposite, or the substitute – that is, the emergency – though allegedly secondary, comes to serve a crucial role. Working as an aid, emergency is the element, contained within the rule of law, which restores the generalized authority and reinforces the general notion of command. In regards to this first point, I want to raise the question of to what extent the necessity of instituting its own exception is a feature particular to modern law and modern state. For this purpose, I would like to bring to our examination the historical example of the institution of the dictatorship in the Roman Republic. According to different accounts one can find in Polybius, Cicero, or Livy, the Roman Republic contained, within its legal framework, an emergency institution established in very specific situations in which the survival of the political community was under threat. The dictator, appointed in the dark of the night was, according to Polybius, a general with absolute powers. As we find in Livy’s discussion on dictatorship, the dictator had to create fear over the citizens, so they obeyed; the right to appeal, existent in times of normalcy, was suspended in this period and, finally, being the dictator both the judge and the executor in times of exception, it was the only non-collegian institution in Rome. In this sense, the law regulating dictatorship was a law that allowed for lawlessness, just as the modern martial law examined by Hussain. What I want to challenge here, with this example, is his claim that “emergency plays alongside the rule of law” a “constitutive role” “in the conception of modern sovereignty” (p. 97). It seems to me that the role of emergency in guaranteeing the health and the integrity of the body politic is not specific to modernity, but rather seems to be a constitutive part of the political community, which periodically interrupts its ordinary law. Or, if emergency acquires a specificity in modern times, what are they? Put in other terms, what are the particular characteristics of emergency in modernity that makes it a unique concept and reality?

Keeping on with the analysis of emergency and martial law, I want now to direct our attention to Hussain’s assertion that martial law is “not a legal but a sovereign act” (p. 115). Therefore, it becomes the will, the sovereignty which “is required as the prior condition before law and state resume their normal course” (p. 115). Underlying this proposition, I identify Carl Schmitt’s definition of the sovereign as the one who decides in moments of exception. I would like to complicate this view by arguing that one can grasp two theories of exception in Schmitt, more specifically in his Constitutional Theory. While he indeed develops the notion of an authoritarian exception, which is framed from above: he, the sovereign, is who makes decisions in moments of exception, he also offers the possibility of imagining a democratic exception, that comes from below: he, the sovereign, is the one who makes or gives himself the constitution (Kalyvas 2008). Thinking along these lines, and with a particular focus on our question regarding the emancipatory potential of law, I want to count on our capacity for imagination. Could we imagine instances in which the exception is not a mechanism to assure domination, to reinforce the general notion of command and to restore the general sense of respect for authority, but rather, in these instances, the exception is a democratic one, serving as an instrument to resist it and fight against that very logic? Simply put, can we think about exception in productive and emancipatory ways?

Turning now to the issue of colonialism, it is clear that Hussain believes in the potential of colonialism as the best historical example to ground the theoretical analysis of the relationship between norm and exception, rule of law and emergency. Inherent in the colonial project is, as he demonstrates, the ideological contradiction of the simultaneous recourse to the rule of law and to the regime of conquest. The coexistence of two different systems of legality, derived, on the one hand, from “conventional legal norms” and, on the other, from “sovereign decree,” works in a way to assert both the legitimacy of the colonial state and the higher value of civilization. In this sense, the use of martial law not only created a distinction between the legal identity of the empire and the colony, but also concealed the fundamental despotism of colonial rule. However, despite the crucial role played by emergency in the construction of colonial governamentality, Hussain’s project aims to explicate, by appealing to examples of colonial law, something that goes beyond the colonial enterprise, namely the logical foundation of modern legal system. For this reason, the question I raise is the following: how does his framework help us to examine the post-colonial landscape and its characterizing element of (formal) political democracy? It is clear that the principle of supreme necessity is still applied to secure justification to exceptions to the norm, as we see in different constitutional democracies which explicitly allows for a declaration of a state of emergency, under which individual protections are restricted or simply negated. Moreover, we also witness the proliferation of emergency laws that end up establishing an almost permanent state of exception, such as the Patriot Act. In light of this scenario and, understanding with Hussain that rule of law is not a guarantee against the state of exception, but rather is depended upon it for its own existence, my question is: how can we move beyond critique and offer an alternative form of legality with some emancipatory potential? Would the notion of legal pluralism, which sheds light on a multiplicity of centers of norm production coexisting within and along side of state-based legal system, be helpful in this enterprise?

—Mariana Assis