The State of Pimlico
On my walk from my home in Pimlico, for my designated exercise period, I can pass a temporary mortugary erected on the Horseferry Road. I can join the carefully spaced queues at Sainsburys. Walk two meters apart in St James Park, using the spray painted yellow signs as my guide. This is an emergency in which law is being set aside. I am not arguing here about the timing of interventions being made by the government because I am not an epidemiologist. I am a historian who also works in conflict affected states like Iraq, Lebanon and Yemen. In those places, in times of conflict, power is used in the name of the emergency and the law comes trailing behind to try and tidy things up afterwards. Or, more often. The world moves on and the same powers of exception continue to be used, are then used in the next emergency or by a group having a monopoly of violence in a particular part of the country. The UK is a divided but not a conflict affected state and there is polarisation but no state on state or intra-state violence. So we sit in a different category of emergency but how we transition from the state of exception back to normalcy is still a critically important question. We cannot assume that everything will go back to the status quo of January 2020.
This is not a state of war.
We have not declared war on the COVID-19 virus because it is not a nation state. Nor are we now as Lord Sumption has hysterically claimed, heading towards a police state. But we are in an undeclared state of exception. It is one form of dictatorship as described by the German philosopher Carl Schmitt. Schmitt argued that in a moment of crisis the state of exception is what gives legal form to that which cannot have legal form. The person who declares the state of exception is the sovereign. The Italian philosopher Giorgio Agamben argued that we have been in a state of exception since the war on terror. I would tend to agree but it has ebbed and flowed. For Agamben it is also something that effects both the public and the private realms because it is so exceptional. The entire legal basis of the Third Reich was the suspension of the Weimar constitution to allow the state the power to reach for totalitarianism. It tried to infect all elements of human existence and reduce the private and intimate space as much as it could. Your citizenship was defined by the blood in the racial state. In the war on terror the threat to national security and to the lives of citizens was used to justify regime change, invasions, extraordinary rendition, extended detensions, drone delivered state murder and mass surveillance. Often Law came afterwards, when it came at all. Agamben argues that the state of exception does not exist in law, which may be true philosophically. It exists in fact.
In its early modern guise it was the power to take extreme measures during an exceptional circumstance like a state of siege. It was first articulated properly at the time fo the French Revolution. In its 20th century form, the state of exception is a condition that opposed liberalism, cosmopolitanism and judicial activism, as much as it responded to an emergency. In the 21st century it is hybrid of the two: an emergency response which is necessarily illiberal.
Carl Schmitt in Number Ten
We have a witting or unwitting disciple of Carl Schmitt in Number 10. Dominic Cummings is Schmittian. His politics are the politics of the state of exception not because he wants to be a dictator in the sense of creating a permanent totalitarian regime. He is a democratic, even if a flawed one who believes in binding referendums, and he does not have the power to use the state of exception to transform the state in the manner of Mussolini or Hitler or even Napoleon III. But he can use the state of exception to change the rules of the game and he is Schmittian because he believes that the ends justify the means if change is to occur. That perhaps it is only by temporarily setting aside the rules of the game, ie the rule of law, that disruption can be introduced and the “system” transformed.
His boss is not a Schmittian in the same way. Boris Johnson is a pragmatic populist, driven by a baseline blend of neo-liberalism and conservatism but also by the pragmatism of his own ambition and sense of personal historical mission: an individualised manifesto destiny.
They are a uniquely combustible combination and it is very difficult to predict how they will use the powers that have now assumed.
The only certainty is that they will use them.
We are not at war not only because the virus is not a state but also because this emergency may not have a clearly definable end. Virus outbreaks have been happening with greater frequency and intensity for decades but until now western states have not taken powers to combat them to this extent. There can be no victory over a virus as such because it cannot sign a peace treaty and promise to behave better in future. It will mutate. It will be replaced by other viruses. The question is when will governments announce that the state of exception has ended. Historically, the state of exception ends if it becomes codified into laws and those laws become precedents. Or the state drops the powers it has acquired. Or it never ends but sits, as in the war on terror, latent waiting for the next attack or enemy of the state.
What is next?
The state of exception is, for now, the basis on which we are ruled and the real question is what the government will do with this power now that it has it. We might welcome the application of the state of exception to the medical emergency we face but we must be vigilant about the evolution that takes place after the emergency. This exceptionalism could be used for a remaking of our political economy for the better, and in later posts, I want to explore how. It can also be used to deepen the illiberal elements of the direction in which our democracy and other European democracies were already heading.
We do not face a binary future: dictatorship or democracy as it was in the interwar period when the modern doctrine of the state of exception was formulated. Rather it will be a complex gaming of first (political and civil), second (social and economic) and third generation human rights (identity and cultural) balancing out against each other. The state of exception is the mechanism by which the balance can be altered permanently. We are going to like what happens next to the extent to which it is gamed correctly for what we might consider good or bad outcomes.
The key question is the degree to which we revert or want to revert to where we were before the state of exception and the extent to which, as in the war on terror, the state of exception defines the balance of powers in democratic states between not only the different forms of citizen rights but also the branches of government in the name of public health. Even, in extreme cases like Hungary, the extent to which the state of exception can be used to destroy the democratic furniture of a modern European state.
Giving Power Away
Governments are not good at giving up power once they have it, however they often, as in the war on terror, codify things in law retrospectively. The only postwar politicians who have really talked about giving up power are Nye Bevan, Margaret Thatcher and John Smith. Bevan said he wanted power to give it away but as a Minister took much more of it for the state by nationalising the hospitals. Something we might thank him for today. Thatcher gave the power of the British state over nationalised industry to the market and empowered individuals with tax cuts. Smith created the framework for devolution of power from the central state to regional states which Blair and Brown legislated. But every other government has kept the power they have taken. In the short term at least, this government will do the same. It is important that there is judicial oversight and the Labour Party will call for that. But it is much more important that there is a radical debate about what to do with the power this moment has vested in the state. That debate has two dimensions.
The first dimension is the extent to which there should or will be a rebalancing between different generations of human rights. Lord Sumption’s view is that the second generation social right to health is already being privileged over the first generation right to freedom of movement/expression. This is hysterical because the state of exception has not been made permanent. If we were all told that even after this virus has run its course we still had to stay locked in and Parliament introduced laws to codify that in full. Then we would be in the police state. That will not happen. The question is what will and should happen as the power of the state is rebalanced. If we want our social right to health to be protected then are we willing to pay for it. Will the pragmatic populist in Number Ten see the main chance to take the health and social care debate off the political agenda for good by charging his Schmittian disciple to use the moment to restructure the tax system? In future posts I will play around with possibilities in this space further.
The second dimension is the extent to which there will be rebalancing between the branches of government. Aside from rubber stamping law retrospectively, Parliament is rendered impotent in a state of exception. But the other victim historically has been judicial activism. With some notable exceptions, the Judges of Germany collaborated with the state of exception. The Human Rights Act and the European Court of Human Rights achieved little against the executive activism of the war on terror. And the Human Rights Act is set to be repealed and the European Convention abandoned.
“William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
In the state of exception the thick planted laws from coast to coast are flattened, the question is, in what shape will they be in when they sprout again?
The Charlwood Review 