Chapter 11

Critical conclusions need to be drawn from this review of the theory and practice of emergency powers. Some of the most important are:

Emergency Powers Are on the Rise

1.   The early years of the twenty-first century have seen increasing resort to emergency-type powers or claims of supra-legal executive authority, including by the Western countries regarded as the world’s leading democracies, notably the United States.

2.   These trends point to an underlying shift towards more totalitarian methods of rule, bound up with preparations for war, further economic crises, deepening austerity programmes and political disaffection.

3.   One prominent aspect of this creeping authoritarianism is that, both globally and domestically, the indefinite supposed ‘war on terrorism’ declared by the US government in 2001 has set far-reaching precedents which have already been used to justify overturning legal and constitutional proscriptions against torture, detention without trial and extra-judicial executions.

4.   Largely also on the pretext of protecting ordinary people against terrorism, mass electronic surveillance – directed against millions of ordinary people – has been instituted, notably by the US National Security Agency (NSA) and its global ‘Five Eyes’ partners in the UK, Canada, Australia and New Zealand.

5.   Eruptions of social unrest, including protests against police killings and violence, have already triggered declarations of states of emergency in the name of protecting public safety and welfare, such as those imposed in Ferguson, Missouri, in 2014 and Baltimore, Maryland, in 2015.

6.   Emergency financial powers have also been asserted to justify exceptional measures to rescue the economic system from financial breakdown, inflict social spending cuts or demand the elimination of previous entitlements, such as public sector job security or retirement benefits.

Underlying Emergency Powers Have Been Consciously Preserved

7.   In the three such countries examined in most detail – the US, the UK and Australia – in addition to far-reaching emergency legislation of various kinds, great care has been taken within the political and judicial establishment to preserve potential recourse to authoritarian forms of rule from earlier periods, such as executive orders, royal prerogative powers and martial law.

8.   Emergency is an inherently ‘elastic’ concept, open-ended and politically manipulable. From the 1933 Reichstag Fire, seized upon by Hitler to justify decree-making power, to the false claims of ‘weapons of mass destruction’ utilised by the US and its allies to invade Iraq in 2003, governments have inflated or fabricated pretexts for supposedly pre-emptive emergency measures.

9.   The English-derived common law provides considerable scope for dictatorial measures.

10. The common law has been prepared to support the imposition of martial law, which is, in essence, the suspension of law altogether. Martial law declarations can pave the way for extensive military powers, including the right to summarily try and execute individuals, in order to put down civil unrest.

11. Over the past few centuries, the courts have also developed the doctrines of revolutionary legality and necessity to justify draconian government actions or ‘successful’ revolutions that become new legal orders.

12. Likewise, the courts have recognised indemnities, immunities from prosecution and defences such as self-defence and ‘reasonable use of force’ to condone brutality and repression.

13. Courts have repeatedly protected governments against punishment for official lawlessness – acts of surveillance, harassment, violence or intimidation undertaken in the name of defending the state.

Carl Schmitt is Being Revived for a Reason

14. A striking feature of the opening years of the twenty-first century has been the revival of references – in academic literature, governmental documents and judicial utterances – to conceptions of ‘exception’ that mirror those of Carl Schmitt.

15. Under doctrines developed by Schmitt – a legal academic who ultimately served the Nazi regime in Germany – urgency can justify a ‘state of exception’ under which basic legal and democratic rights can be abrogated, the rule of law suspended and the executive branch granted exceptional powers.

16. Within the academic realm, efforts have been made to rehabilitate Schmitt. There have been attempts to either justify his views, or at least relativise them – that is, to suggest that they deserve reconsideration as a legitimate response to the political instability of the Weimar Republic and the allegedly twin dangers of fascism and communism.

17. Schmitt is often cited for his association with Nazism, as the ‘crown jurist of the Third Reich’. However, his doctrine developed more than a decade before the fascist seizure of power in 1933. Moreover, Schmitt’s conceptions – fashioned during the formally democratic period of Germany’s Weimar republic – helped clear the path for Hitler, both theoretically and practically.

18. Under fascism, the political logic of the conceptions advanced by Schmitt, a virulent anti-communist, became clearer. Having asserted that rapid changes in the political situation rendered any legal system built on fixed legal codes unstable, he justified permanently in-built emergency powers. Schmitt supported Hitler’s continual suspension of the legal constitutional order during the Third Reich – first with the February 28, 1933 decree on the Reichstag fire, which was falsely attributed to communists, then the suspension being renewed every four years.

19. Schmitt saw his theories as essential to maintaining the German state against the danger of either a communist-led working-class revolution or a Nazi-led seizure of power. Ultimately, the inherent logic of his views saw him accommodate himself to the fascist regime as a means of ensuring the strength of the state against its domestic left-wing opponents and foreign rivals – particularly Britain, the United States and the Soviet Union. The Nazis, in turn, found his theories useful as a means of seeking to justify and sanctify their violence and tyranny.

20. Despite the Weimar Republic’s formal adherence to democracy and civil rights, there was an underlying political continuity between it and the Nazi regime, which were both directed against the working class and the prospect of socialist revolution.

21. The historical record demonstrates that Schmitt was not simply a legal theorist, but a direct participant in the anti-democratic acts, political plots and counter-plots that led to Hitler’s appointment as chancellor in January 1933.