It is not illegal when the president does it.
The legal opposite of the rule of law is the state of exception, sometimes called a state of emergency. In the former, nobody, not even state officials, can violate the law. Nobody is exempt from compliance with the law. By contrast, the state of exception presumes that the state, under conditions that justify it, can and should protect the general welfare by acting outside the framework of the law and imposing measures that violate the rights of citizens that are recognized by the constitution.
This state of exception sometimes formally replaces the rule of law, usually without popular consent. Examples of such cases are military coups that overthrow an existing democratic order and replace it with an authoritarian regime. One notorious case from the past century was in Spain in 1936, when the Spanish political right and the army, under General Francisco Franco, overthrew the legally elected Second Spanish Republic, unleashing a terrible civil war that lasted three years. The autocratic Franco regime, in the form of the National Catholic movement, overthrew the republican government and established a military dictatorship, which created a permanent state of exception that lasted more than 30 years. Another dramatic case occurred when Chilean generals led by General Augusto Pinochet, with the consent of the conservative sectors of Chilean society and the approval of the United States, led an uprising against President Salvador Allende (whose regime, like that of the Spanish Republic, had been elected by popular vote) and imposed a brutal state of exception led by military kleptomaniacs who retained power for nearly two decades.
But the state of exception is not only seen during military coups that overthrow democratic rule. To ensure survival of traditional social hierarchies, the laws of liberal democracies allow the state to suspend constitutional guarantees (citizens’ rights) when extraordinary external or internal circumstances merit it, although they also demand that the suspension of rights be temporary. In other words, the usual freedoms can only be denied while the special circumstances last. These times are also often referred to as a state of emergency or martial law and are common in times of war (external threat), during natural disasters (to facilitate emergency response, restore order in the community and avoid outbreaks of crime), when social disturbances arise (to restore public order) or to strike back at political uprisings (to defend the status quo).
Sometimes the government takes actions that violate the rule of law without declaring a state of emergency. This was the case during World War II when Japanese citizens in the United States were placed in internment camps, in clear violation of their constitutional rights. Other times, serious social tension, usually related to issues of security and political stability, can lead to the implementation of rules and practices of exceptions that can last much longer. These cases can be caused by rioting in the streets, excessive social violence, or organized political actions in protest of official acts and policies. These are sometimes accompanied by violence by the state. For example, the civil rights movement launched in the United States by Martin Luther King and the mobilization against the Vietnam War led to extraordinary acts of violence by the state, including use of military forces against citizens (Little Rock, Washington D.C., Kent State University, etc.).
A state of exception can also penetrate social institutions in more subtle fashion, usually disguised as a legitimate law, disguised as the rule of law. An example from history, also in the United States, occurred when the tension toward the communist world during the Cold War combined internal security issues with the supposed external threat from the Soviet Union to introduce McCarthyism, a name history has given to state actions that show paranoia, repression and restrictions that systematically violate traditional citizens’ rights. In Puerto Rico, the anti-establishment acts of the Nationalist Party, which culminated in the Revolt of 1950 and the attack on the U.S. Congress in 1954, led to the implementation of equally repressive and extraordinary measures. The Puerto Rico version of McCarthyism was the Mordaza, a law that was legitimized by the state of exception and in Puerto Rico has come to symbolize authoritarian and anti-democratic conduct by the state when the government perceives a threat to its stability.
There is extensive legal and theoretical literature on the state of exception. Among the important thinkers are German jurist and philosopher Carl Schmitt (1888-1985), who validated the concept under the supposition that the democratic constitutional state was limited by modern structures from performing the primary function of the nation state, to protect the community from its internal and external enemies by exercising political power. As the nature of politics resides in the relationship between friends and enemies, only the authoritarian power of the state, unrestricted by the law, could protect the common good and effectively defend national interests. Schmitt supported the German National Socialist regime (1933-1945), and his followers and disciples held important posts in the political construction of the Federal Republic of Germany after World War I. Additionally, his thinking has had a marked influence on the development of neoliberal theories that are dominant today in the corporate world of the globalized economy.
On the other hand, criticism of the state of exception, from a humanist perspective, has raised alerts about the persistent contradictions of modern constitutional states. These contradictions weaken liberal institutions and explain, in part, the precariousness of the social democratic or liberal welfare state. Among these critics are lucid thinkers and researchers such as Italian philosopher Giorgio Agamben. In conclusion, the problem of the institutional rule of law based on criticism of the state of exception, as a constitutional concept and as a political practice, is one of the great challenges of the political world of today that is impossible to ignore.
Author: Roberto Gándara Sánchez
Published: September 11, 2014.
This post is also available in: Español