Normalizing the State of Emergency

Only days ago, France’s lower house of parliament approved anti-terror legislation, granting broad powers to the police to conduct searches and identity checks, place people under arrest, enact restrictions on gatherings, and close places of worship — all with administrative, rather than judicial, oversight. The new law, voted in by a large margin of 415-127 (with 19 abstentions), will likely go into effect on November 1, and will be reviewed for prolongation in 2020.

This measure codifies what has been an ongoing state of emergency, originally enacted by the Socialist President Francois Hollande in the wake of the attacks of November 2015. Since then, the state of emergency has been extended six more times in the face of ten more attacks, reinforcing what has been called an “era of terror” for France that began back in 2012. Reflecting this mood of besiegement, one poll has reported that 57% of the French population supported these measures, despite warnings from rights groups about the discretionary powers that it now grants to the security state. While the language of the law does not target specific groups or individuals, there is no substantial concern that it will be specifically applied to surveil and detain immigrants, Muslims, and activists.

The easy legalization of measures that initially fell under a state of emergency also serves as the latest example of a crisis in the rule of law affecting modern liberal democracies. Historically, defenders of liberal democracy have argued that it is the unique regime committed to the rule of law. Yet for many years now we have seen how the combined pathologies of national security discourse and bureaucratic discretion increasingly blur the line between the normal legal order and measures reserved for distinct states of emergency. Although France is the only EU member to have declared a terror-related state of emergency in recent years, an Amnesty International report from January 2017 details that similar trends of “securitization” have been enacted in other EU states, including Poland, the United Kingdom, and now Spain.

In July, President Emmanuel Macron had pledged to lift the state of emergency, arguing that it was not feasible to renew it indefinitely. Instead, under Macron’s initiative and with the bulk of the Yes vote coming from his party, En Marche!, the solution became to codify these policing powers in the form of a permanent counter-terrorism law. Paradoxically, the new law was justified by arguing that a perpetual state of emergency would be an undemocratic violation of the rule of law — and therefore, that the state policies it enacted needed to first be ratified by a legislative body.

However, it would be a mistake to see this new legislation as a form of accountability that “tames” the state of emergency by subjecting it to a legal framework. As Vanessa Codaccioni pointed out, it does not prevent the future declaration of emergency, since the power to do so remains vested in the President under the original 1955 law, enacted during the onset of the Algerian struggle for independence. Rather, the new law normalizes the measures previously acceptable under an emergency situation, giving them the veneer of legality. As a report from Le Monde suggested prior to the vote, “temporary and exceptional measures, which limit citizens’ freedoms over time to fight imminent danger, risk becoming the law of the land.”

The history of liberal democracy in the nineteenth and twentieth centuries is rife with instances where constitutional rights and liberties were suspended in the interests of national security, usually in times of war and sedition. In his 1948 book Constitutional Dictatorship, Clinton Rossiter argued that not only were constitutional democracies quite capable of employing the techniques of dictatorial rule, but that these situations, even when intended as temporary correctives in defense of the constitutional order, were likely to produce a “permanent and often unfavorable alteration in its governmental scheme.”

Rossiter’s study became more prescient for France in the following decade, as the country grappled with decolonization. Indeed, France’s colonial practices, especially in Algeria, have left their legacy on the ambiguities of inclusion and exclusion under the rule of law. A notorious example is the Code de l’indigénat, which between 1887 and 1944 governed French colonial subjects (including Algerians) under a distinct and more punitive legal code than French citizens. Even though Muslim Algerians were granted citizenship in 1946, the outbreak of the Algerian conflict in 1954 saw intermittent states of emergency declared across the country, first covering Algeria and subsequently extending to mainland France, lasting until the end of the war in 1962. Following decolonization, this binary was reproduced within a single legal system through the racialized policing of North African immigrant populations, as with the temporary state of emergency declared in response to the banlieue unrest in the fall of 2005.

Accounts of this transformation of the modern state and emergency powers in Western democracies, especially after September 11, have pointed to what David Dyzenhaus has described as the “grey hole” of the legalized state of exception. This is defined as “a legal space in which there are some legal constraints on executive action — it is not a lawless void — but the constraints are so insubstantial that they pretty well permit government to do as it pleases.”[1] And as Oren Gross and Fionnuala Ní Aoláin have argued in their book Law in Times of Crisis, “what were deemed exceptional emergency actions in the past may now come to be regarded as normal, routine, and ordinary, in light of more recent and more dramatic emergency powers.” The imagined boundary between the conditions of normalcy and of the exception tends to become increasingly blurred, redefined, and reshaped with each invocation of emergency powers. In this case, rather than imposing an extra-legal, exceptional situation, the French law preserves the façade of a normalized legal order while reserving broad discretionary powers to organs of the state.

This blurring of the legal and extra-legal can also be explained by certain structural and institutional changes within the modern capitalist state. In the late 1970s, Nicos Poulantzas outlined a series of transformations within liberal-capitalist states that served as a precursor of the contemporary neoliberal model. Writing with the French state in mind, Poulantzas observed the emergence of a phenomenon he termed “authoritarian statism.” This new form was characterized by the “intensified state control over every sphere of socio-economic life combined with radical decline of the institutions of political democracy and with draconian and multiform curtailment of so-called ‘formal’ liberties.” In practice, this included the growing strength of the executive branch (with its bureaucratic and administrative apparatus) at the expense of the legislature; the relative weakening of representation via parliament in favor of dominant mass parties, plebiscites, and mass media outlets; and the accelerated state intervention in the economy in order to facilitate new forms of capital accumulation.

We need to update this notion of authoritarian statism to better account for the effects of neoliberal capitalism on both state and society during the last forty years — including the expansion of new technologies of surveillance and social control, the greater subjection of the state to transnational economic and legal pressures, and the new social antagonisms caused by migration, forced displacement, and ecological crises. However, its key descriptive elements remain the same: the expansion of executive power and the security state; the erosion of legal and constitutional checks on that power; and the crisis and decline of democracy, in both its representative and participatory forms (The fact that the emergency law found its basis of support in Macron’s En Marche! is also noteworthy, since it is a newcomer to the French political scene, lacking the social base of more established parties and signaling a broader crisis of the country’s party system).

By legalizing the state of emergency, the French government has effectively set upon a path where such measures become standard procedure for dealing with any perceived security threat, no matter the magnitude. Defenders of the measure argue that the only way to prevent future attacks is to grant such discretionary powers, pointing to the authorities allegedly thwarting twelve terror plots in this year alone. However, just last year a French parliamentary report admitted that the state of emergency had grown less effective, with thousands of warrantless searches and hundreds of house arrests leading to only six terrorism-related investigations.

Yet even setting aside this conflicting information, the policy debate about a legalized state of emergency should not be evaluated by a calculus of numbers, since it fundamentally damages the principles of democratic accountability on which liberal states claim to function. Many are rightly worried about what can happen should the National Front take power (so far Marine Le Pen has called the bill “a ‘subpar’ state of emergency,” suggesting that it does not go far enough in allowing authorities to detain and deport immigrants.) In the end, we should keep in mind that these powers are not only dangerous in the hands of a fascist like Le Pen, but also in those of a “radical centrist” like Macron. This expansion of state capacities is not bound by party affiliation. Once procedural measures and legality become a pathway for the normalization of emergency powers, claims that liberal democracies are uniquely dedicated to the rule of law will increasingly ring hollow.

Rafael Khachaturian (@rafkhach) is an Associate with the Global Studies Center at the University of Pittsburgh. He received his Ph.D. in political science from Indiana University in 2017.