Dear Pier Giuseppe,

 you question is both fascinating and topical, given the recent events in Paris. 

The following ideas come to my mind:

1. Certainly, your author must be Carl Schmitt, who seem to have implied something like what you suggest, when he talks about "the political".The question is, how does he regard the legal consequences of his strong interpretation of "the political", as simply a matter of decision. As a constitutional lawyer he has a lot to say about that, but nothing really helpful from the point of safeguarding the rule of law. In fact I have a slight feeling that German ideas of Staatsclehre would bring this discussion away from a reliable solution.

2. On the other hand mainstream liberalism seem to be blind to the moments you refer to. THerefore there is a theoretical lacuna here.

3. Perhaps political realists might be relevant. Like Bellamy, who is himself interested in the political dimension of constitutionalism. He tries to connect the law back into the realm of the political.

But I guess that a scholarly focus on the topic would be quite useful. In fact we with some of my colleagues have plans to talk about the relationship between constitutionalism and "the political", in the context of constitutional failure, which is another topic, but quite similar to the issue you raised in this respect, that here again the law and the real political needs to be brought closer to each other.

FInal note: for me Aristotle's notion of the "uncertainty" of our knowledge of things political seems to be quite relevant, too, in this respect, too.

Best,

Ferenc

Dear Pier Giuseppe: Besides Carl Schmitt, as Ferenc accurately points out, I think your author could be Giorgio Agamben, whose work "Homo Sacer" is precisely focused on the ontology of the state of exception. Accordint to him, the state of exception is an intrinsec and therefore potential condition of the rule of law. That is: rule of law always implies a state of exception, which can be seen in what Foucault named "illegalisms" (areas where the illegal behaviour is well known but tollerated by the institutions, which need to "respect" those illegal spaces in order to keep social peace) or in the treatment given by states to migrant population. So: the state of exception would not only show up in moments of constitutional change or institutional collapse, but is rather a permanent companion of rule of law. However, this way of facing the question has been partially critized by philosophers like Toni Negri, who insists on developing a positive ontology, instead of the negative perspective which caracterizes Agamben's work.

Dear Pier Giuseppe

Let me share with you just some general approaches.

1) I am not very fond to think in terms of "ontologies", just because it usually means immutable essences, and therefore also liable to absolute truths. Beyond that, I can understand the approach that seeks a deeper understanding of this problem.

2) the problem you pose is about the relationship between politics and law. Generally, it is assumed that politics and law are independent and excluding experiences. Under this assumption, of course, states of emergency mean a collapse of rule of law.

3) however, in my view, it should be seen from another perspective: in any case public power corresponds to the policy. The policy can be exerted in a wide range of possibilities: through brutal ways (war) or through more rational ways (under rule of law), including intermediate or mixed forms.

4) keeping this in mind, it allows us to remember that : (a) even under the rule of law, politics is present everywhere, it's only a matter of degree; this includes the case where a judge decides when it should make an exception to the general rule for reasons of inapplicability or reasons of equity (b) is always risked falling into less civilized ways of exercising power (c) even when politic power exerted by violent means (uncivilized), the expectations of legitimation of power -in today's world- compels rulers to respect -as much as possible- legal forms, or at least, to promise to do so. Therefore, I think that the states of exception are instances in which the holders of power whereas interpret that must resign certain legal forms for the benefit of desirable outcomes, including to satisfy public opinion, hoping to legitimize power. Naturally, the less intense the withdrawal of legal forms and the more credible its exceptionality , the greater chance of being accepted. In those terms, states of exception (emergency) can be interpreted even as been part of the experience of a (legal) civilized politics, perhaps to the least extent, or perhaps on the way to stop being so.

Otherwise, I agree with the theoretical references that mention our colleagues.

Yes, thanks a lot to you all. You made terrific and precise interventions.

Of course I do share the opinion that both Schmitt and Agamben are the two closest to the problem I was raising. It is also intriguing the reference to Negri.

It seems to me that among the many "heirs" of Schmitt there is also a newer "Italian Theory", ranging from Negri to Agamben and Esposito, based precisely on the insight of state of exception in terms similar but different from Derrida, la bete et le souvrain, and Foucault, both having been at the heart of the so called "French Theory".

So I could go on asking if you think that there is, or not, this oncoming paradigm of an "Italian Theory" centred as it seems on bio-politics and state of exception as its 2 major k-concepts, but with an its own definite flavour ?

And...to be more specific about the "rule of law" , I am rather concerned about it. Since it looks like a global term, but it is indeed deeply rooted in anglo-american experience. Do you think, for instance, that rule of law can be translated into French or German?

I do not think that Rechstaat would be a good translation. Neither it is Etat de Droit. Even USSR was a Rechstaat, and maybe the Rechstaat par excellence, but certainly not a good example of the rule of law.

So, thinking globally, there is a paradox in giving a general theory of the law when even the widely used term "rule of law" looks deeply rooted in one legal tradition.

Really thanks again

Dear Pier Giuseppe,

 it is interesting to learn about the Italian Theory, of which I was not aware earlier.

I agree with your hesitancy about the generalisability of the concept of the rule of law. However, being an Anglomaniac, I really appreciate the term. But I agree that it seimply does not work where poltiical trditions and political culture are different.

On the other hand I think that there is a chance to learn in politics. for example most of the Benelux and the Scandinavian states learnt quite easily the concept, I guess. 

ANd I wish that was the case with Hungary as well.

On the other hand, you are right with implying that the whole discourse of Staatslehre is inconceivable in English. 

But again, I am a bit afraid of the German concept of the Staat. (While I admire the political tradition and culture of the individual German "Lands"- and Stadts, including the Hansa bound. 

ANd of course I appreciate the same - the substate level traditions in - mainly Northern and Central - Italy.

Best,

Ferenc

YES! Please consult my book (edited) THE DUAL STATE: PARAPOLITICS, CARL SCHMITT AND THE NATIONAL SECURITY COMPLEX (Ashgate, 2012).

Dear Pier Giuseppe, Dear Colleagues,

The way I approach the question is connented with categories such as "enslavement" and "domination" through law and/or politics in totalitarian societies. I wrote a paper on the topic [Socio-anthropological Assumptions of the Neutralization of Values in Law and the Determination of Law by Values: the Basic Model and its Limitations], which you can find on my profile. Here I will only quote passages which deal with the question whether in the state of exception notions of goods, rights and so on have meaning.

 * * *

Law has a peculiar function in an enslaved society. It forms a institutional frame for implementing material means of compulsion, particularly for massive acts of terror. There is a common opinion that law in enslaved societies constitutes a kind of screen for the authority to hide its intentions. This is true to the extent that legal text is one of the means of propaganda, i.e. propagating a worldview that is comfortable for the authority. Such is the role of Marxism in communist law. [...] [I]t is hard to find historical examples of regimes that effectuated a total enslavement of societies. The Soviet regime was certainly not one of them, as it had to take into consideration the opinion of the international community. A more striking example seems to be the one of North Korea, which – as a result of various geopolitical circumstances – remains almost totally isolated on the international stage and can, therefore, implement the process of enslavement to its fullest.

[...] [O]ppression beyond a certain point is tantamount to enslavement. This means a situation in which the normal behaviour is to give up the rationality and adopt a different means of ensuring safe existence, namely: the attitude of an enslaved man, i.e. predisposition to realise anti-values only because their realisation is expected by the oppressor. Moreover, greater repulsion towards the anti-values stimulates the subject to pursue them more eagerly, as this is what the dialectics of enslavement requires – a complete subjection to the oppressor’s will is not guided by opportunism but by the “honest” tendency to realise more and more horrid anti-values. Such an attitude can be regarded as “Morozovation.” An ideal of enslaved man, Pavlik Morozov denounced his own father – thereby practically sentencing him to death – for the good of his country [the Soviet Union]. It is immaterial whether the historical Pavel Morozov did or did not do what he was glorified for in the communist hagiography. What is important, though, is the fact that this type of social attitude has turned out to be a pertinent illustration of the mechanism of enslavement.

[...] [A]t the borders of the normal [policy] there occurs a sudden reversal of the policy to use law as an instrument of social control. [...] The process comprises three phases. The first one consists in enforcing obedience through law. The instrument of enslavement is a rationalised system of rewards and punishments, which is used to eliminate from the society those individuals who realise their own values [...]. In the second phase, the rationalised system of rewards and punishments is used to “train” the society to realise the regime’s (anti-)values (... enslavement ...). In the third phase, terror loses its systematic character. In order to prevent the massive opportunism of the enslaved, terror has to be random, or irrational. It is only at this moment that the subjects become totally enslaved (“Morosovated”): they realise the regime’s (anti-)values regardless of their own feelings and preferences. This gives rise to the type of society we know from Orwell’s Nineteen Eighty-Four.

Dear Pier Giuseppe and dear colleagues:

The topic is extremely interesting and complex, so it is not easy to answer accurately through this platform. Nevertheless, I would like to answer Pier Giuseppe concerning his allusion to an Italian theory: In a certain way there is an interesting rise of Italian theory, focused on the two topics you have pointed out. However, the flavour of Negri's thought is quite distinct from Esposito or Agamben, because he has been trying to build a positive ontology taking basis on Spinoza's thought and thus rehabilitating a philosophy which had been relatively dismissed during decades, whereas Esposito or Agamben would be more easily associated with negative ontology, in coherency with the fact that both of them take basis on Schmitt. The link of both of them with Negri would be, therefore, the focus on bio-politics and the presence of Foucault as a permanent standpoint.

Besides Rule of Law and its translations, it has been a very argued matter for decades. By the way, there is a splendid book coordinated by Pietro Costa and Danilo Zolo, published in Feltrinelli, with the title "Lo stato di diritto". The topic is largely discussed in some of the essays within the book. In Spanish we would say Estado de Derecho without many problems. And that because there is an already classical essay by Elías Díaz, published in 1968, called "Estado de Derecho y sociedad democrática", whose thesis was that there is a huge difference between Estados con Derecho and Estados de Derecho. The latter ones must fullfil four requisites to be considered as such: 1) Imperio de la ley (Rule of Law); 2) Separation of Powers; 3) A catalogue of fundamental rights (with the correspondant guaranties); 4) An effective control of public administration. The book was published during the period of Franquismo, precisely in a moment in which the regime was trying to legitimate itself internationally and pretending to be considered as a "Estado de Derecho". The book by Elías Díaz said implicitely: "No, Spain is not a Estado de Derecho, but just a Estado con Derecho. And as a consequence the book was taken out for a period....

Best wishes!

Philadelphia, PA

Dear all,

It seems clear to me, after reading through the question and the prior responses, that the political objective of the rule of law is precisely that of eliminating "arbitrary government" or exercise of arbitrary power.

From that perspective, "exceptions" to law are clearly anomalous. They suggest failure of the system of law in dealing with emergent problems and/or failure to extend the law as needed to meet particular problems. They place political power or political expediency above the law.  Adaptation of policy to particular problems cannot replace the law or sufficiently substitute for it in extended problems.

I am reminded of the sometimes lengthy discussions of the "ethics of lifeboats." where there seem to be no good answers to problems posed. I've long been convinced that the best answer to these quandaries is the simplest one, namely, to stay out of lifeboats. Failing that, the question becomes, how did we get into this situation in the first place, and how can we avoid getting into it again?

Correspondingly, the evolution of law is a slow process. Surely, specific traditions of law may be helpfully informed by consulting alternative traditions, though the tendency to simply graft on alternatives is often ill-advised. Few know enough about the alternatives to better understand the details of the differences and the weight and significance of their precedents. 

Clearly, long-ruling political policies have accelerated international interactions to a high degree. This has created many unforeseen problems. What we see, I think, is that informal agreements among high-level political actors on the international stage do not amount to an adequate substitute for international or national/ traditional conceptions of law, as this ramifies into the details of particular societies and their interactions.

H.G. Callaway