Wednesday, 6 April 2016

Antinomies of the Exception - Empire and Emergency Law

[I began writing this piece in the immediate wake of the November 13 attacks in Paris, but was forced to leave it to one side by sheer workload.  Completing it now in April leaves it tied to its original moment of writing in a few places, but not, I hope, damagingly so.  I post here articles on the French state of emergency, and also on the Belgian bomb attacks that have supervened in the wake of the French atrocities.]

France continues to be convulsed in the wake of the breathtakingly murderous attacks in Paris.  Shock, pain, grief, anger, at the individual level, and at the level of society itself, are understandable and inevitable.  The problem is when political and military actions are taken in this kind of atmosphere.

Further airstrikes on ISIS targets have been carried out, though they do not represent a new policy, but rather an intensification of action that was already underway.  Police raids have taken place all over the country.  The most significant of these was the raid in Saint-Denis, in northern Paris, which resulted in a prolonged shoot-out and siege, and a number of casualties, including the alleged 'mastermind' (as the media like to call him) of the November 13 attacks, Abdelhamid Abaoud.  The Assemblée nationale has extended the period of emergency by three months, greatly expanding the already considerable legal powers of the French security forces.  M. Hollande has been calling on the leaders of great powers past and present, including America and Russia, to join France in a grand coalition against ISIS.


A couple of simple truths nevertheless are not part of the fever of discussion and debate - much of it driven by media speculation, by the kind of idiotic bar-talk that passes in Ireland for public discussion on radio, in particular.

France disports itself on the world stage as the home of Enlightenment revolutionism, citizen republicanism, and liberté, égalité, and fraternité.  In truth, it has left those values behind long ago, and what we now see is an empty husk.  The hegemonic ideological power and attraction of the husk is still immense: hence the capacity of a milk-and-water RTE radio presenter, Cathal Murray, to finish his early Saturday morning programme of anodyne light music a couple of days after the attacks by playing the Marseillaise and declaring 'Vive la France'.  The power of the husk is such, in fact, that this kind of statement is beyond or above politics: hence Murray's freedom for otherwise unacceptable editorial commentary, and the declared plans of the English Premier League to play the Marseillaise before all football matches the following weekend.

France's adherence to these values was questionable almost from the start, and this partiality was dramatised most overtly in the colonial context, as exemplified in the violent struggle that ensued in Saint-Domingue - now Haiti - in 1791, when the French revolutionary government allowed citizenship only to wealthy persons of colour, and Toussaint l'Ouverture led the only slave uprising that ever established a state.  Enlightened France then imposed reparations - 150 million gold francs - in 1825 on the Haitian Republic for the losses suffered by slave-owners in the revolution.  These reparations systematically bankrupted the young republic, were not paid off until 1947, and distorted the economy of Haiti in ways from which it still shows few signs of recovering.

The conquest and colonisation of Algeria were initiated in the days of the Restoration, but they were  ramified and strengthened by the Second and Third Republics.   Since King Francis I signed an agreement with Suleiman I of Ottoman Turkey in 1536, France has styled itself as a 'protector' of Christians in the Middle East, a position that survived even the great Revolution, and the laicité of 1905.  Broadly speaking, France has been meddling in the Middle Eastern region - as a crusader power in the High Middle Ages, with Bonaparte's expedition to Egypt in 1799, with its 'humanitarian intervention' to save the Christians of Mount Lebanon in 1860, with the Sykes-Picot agreement of 1916, and the granting to France of the League of Nations mandates of Lebanon and Syria after the First World War - for a very long time.

What this history shows is that in its actions in the Middle East and the Maghreb France has not always been driven by the ideals of Enlightenment rationalism and Kantian cosmopolitanism.  Rather it has behaved as a great power, seeking wealth and resources, territorial aggrandisement, ethnic and religious sway and advantage, and an imperial sphere of influence.  This genealogy feeds into any actions France takes in the Middle East today.

Yet one must also note that for all the verve or swagger with which France carries out actions in its former territories or zones of interest in Africa in the postcolonial era - in Kolwezi, in Mali, unseating Qaddafi in Libya with Britain - it is a defeated power, and one which has not come to terms with its defeats.  Invaded and greatly damaged three times by Germany - in 1871, in 1914, and in 1940 - France also suffered much greater reversals than Britain in the decolonising period - from the disaster of Dien Bien Phu in Vietnam in 1954, to the Algerian War of Independence, the attempted coup of the generals in the face of defeat in Algeria, and the return to France of the pieds noirs - whose children and grandchildren form the backbone of the Front national now in its southern strongholds.

With defeat in North Africa also came an increase in the flow of Algerian immigrants to France, including the 'harkis' (Algerians who had sided with the French colonial regime and who were at risk in independent Algeria).   At the time of the War of Independence, there were already 200,000 Algerians living in France, and these numbers rose dramatically in the 1960s, passing the million mark in the late 1970s.  In a France that was modernising rapidly in the post-war period of reconstruction, a pool of cheap migrant labour was economically useful.  Initially, France adopted a policy vis-a-vis these immigrants of assimilation, but from the 1980s onwards, the policy was of integration.  The policy shift was experienced by many immigrants and their children as one of exclusion. 

The net result, then, is a France which seeks to act as a great power on the global stage, in spite of its declining geostrategic capacities. When it comes to intervening in the Middle East, French freedom of action is not only hampered by shrinking military power and reach, and the necessity of working with transnational alliances such as the EU or NATO, or a regnant superpower such as the United States, but it is also affected by legacies at home and from history.

One may conclude, therefore, that in ways which stand out among the North Atlantic great powers, France's activity in the Arab Muslim world is particularly shadowed and overdetermined by historical legacies and by its internal demographic and social balance, producing extreme torsions and imbalances in attitudes, policy and actions.   On the one hand, France wishes to take aggressive military action in Syria and Iraq, to become Saudi Arabia's premier armourer, to remain a major influence in North Africa, to pay service of even symbolic kind to its historical tradition of guardianship of Christian communities in Lebanon and the 'Holy Land'.  On the other, it has a large, often impoverished, disgruntled population of Maghrebi Arab Muslims, to whom the rhetoric of republicanism and the Marseillaise is a cruel joke, who live outside the gilded world of old Paris, who have little cultural recognition or capital in modern France, and who provide a relatively tolerant milieu, and in some instances a fertile recruiting ground, for Wahhabi or Salafi Sunni extremists. 


'Sovereign is he who decides on the exception', wrote the German rightwing jurist and political theorist Carl Schmitt in his Political Theology (1922).  To liberal thinkers - the followers of Rawls, most obviously - the scandal of Schmitt's formulation has been its suggestion that sovereignty is a constitutive precondition of a legal order, not a product of such an order.  Any legal order is based on a sovereign decision, not a legal norm.  What follows from this is Schmitt's exposure of a form of authoritarianism secreted within supposedly liberal constitutions such as those underpinning most Western democracies.  True sovereignty, in this vision, lies in the political agency in society capable of suspending the law, and installing the 'state of emergency'.

Schmitt, writing in the early 1920s, was working and thinking in the era of the Weimar Republic, the shaky liberal constitutional arrangement in Germany after the First World War and the various uprisings in Germany that followed defeat in that war.  It's unsurprising, therefore, that he should offer a vision of a legal order which is so aware of the vulnerability and even arbitrary character of that order.  Schmitt, an admirer of Thomas Hobbes, takes from Leviathan the nostrum that law is not made by truth, but by authority.  He suggests that the applicability of legal norms presuppose or require a situation of 'social normality', or social homogeneity.  No legal norm can function in conditions of social chaos, and therefore a polity must be entitled to decide whether and when to suspend application of its law on the ground that the situation is abnormal.  Hence, his definition of sovereignty: if there's a person or institution, in a given political unit, able to institute a total suspension of the law, and then to use extra-legal force to 'normalise' the situation, then that person or institution is the sovereign in that polity.

If this seems like a warrant for dictatorship, then it must be noted that Schmitt also argued that attempts to legalise the state of exception are doomed to failure.  The state of emergency cannot be prepared for in positive law.  On the contrary: if a Schmittian sovereign exists, its authority to suspend the law doesn't require positive legal recognition, since the law's applicability itself rests on a situation of 'normality' put in place and secured by the sovereign.

Further paradoxes structure Schmitt's thought in this matter. If the sovereign's power to decide on the emergency or exception is not restrained by positive law, then the sovereign has the authority to decide what is an emergency.  To respond properly to such an emergency, nevertheless, the sovereign must be sensitive to social attitudes and mores.  So, to respond to and deal with the emergency, the sovereign must have the support of a substantial social constituency.  Yet, the sovereign's decision on the state of emergency is most likely to be required under conditions of social fragmentation.  In this situation, no unanimity of opinion will  be possible, and the sovereign will end up having to throw its weight  behind one social conception of 'normality' over against another contending conception.  So, the sovereign making of normality is the creation of a community's political identity, and this creation is likely to be predicated in part on the quoshing of other groupings whose notions of normality differ from those of the sovereign.  And so the matter of the legitimacy of the law turns on the question of the legitimacy of an identity-forming sovereign exercise of foundational or originary violence.


The pertinence of Schmitt's work to the current French situation, or indeed to the situation in the United States in the wake of 9/11 and the Bush Administration's announcement of the 'war on terror', or indeed to the modes of governance deployed by Israel against the Occupied Territories, is clear. The occurrence of some kind of military or 'terrorist' 'emergency' is held to permit of the 'partial' or 'temporary' suspension of the law or of elements of the law.  The colonial context is striking and crucial: the last time France declared such a state of emergency was during the riots in the banlieues in 2005, and the time previous to that was during the Algerian War in 1961.  It appears that the defence of the values of the political Enlightenment requires their suspension by the polity that presents itself as their chief home.  At these times, the supposedly liberal-republican order of France has turned itself inside-out to reveal the usually-hidden authoritarian authority underpinning liberté, égalité and fraternité.  It's this angle of vision that allows us to realise that crowds spontaneously gathering at the Place de la République to proclaim their adherence to laicité are not simply expressing popular democratic values and a defence of human rights, but rather, or at the same time, are expressing ethnic-majoritarian authoritarianism of an alarming kind.

Here are three articles worth reading on this situation:

Firstly, Richard Falk.  Falk is emeritus professor of international law at Princeton, and one of the most distinguished scholars of human rights law alive.  Here is an essay from his blog on the recent bomb attacks in Belgium:

Reflections on the Brussels Attack

Next, two articles from Jacobin on the French emergency situation in the wake of the November attacks.   Gilbert Achcar is a prominent Lebanese scholar teaching at the School of Oriental and African Studies in the University of London::

France Returns to the State of Exception

And Grey Anderson, a young student at Yale:

The French Emergency


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