'The Law of Emergency and Reason of State' (LSE Legal Studies Working Paper No. 18/2016) by Thomas M. Poole
examines
the role of human rights in political emergencies. It introduces the concept of reason of state as an alternative to theories of emergency powers that are based on either state prerogative or liberal legalism. It argues that state prerogative and liberal legalism suffer from a common defect: both are premised on a dynamic of norm and exception and thus are poorly equipped to deal with the ‘pseudo-emergencies’ that dominate state practice today. Reason of state better illuminates ongoing legal and political dynamics by focusing on the state’s role as custos – a guardian or protector of the regime of law – and the pressures such a claim place on legal order. Viewed from this perspective, human rights adjudication can be seen as a mechanism for normalizing and constitutionalizing reason of state by subjecting its exercise to public deliberation, contestation, and justification.
Poole comments
One of the major juridical puzzles of our times is the role of human rights in political emergencies. This focus results largely from a change in political weather. But it is also a natural by-product of the coming of age of rights. Our more turbulent global politics has thus produced the first systematic test for rights jurisprudence. A common response to the puzzle is to approach it in terms of the opposition of rights and emergency and to map it conceptually in terms of the dynamics of norm and exception. This paper responds to the puzzle rather differently. It argues that much of what we have tended to group under the banner of ‘emergency’ has been misdescribed, and that the idea of ‘reason of state’ provides a more nuanced and subtle framework with which to make sense of relevant juridical developments.
One reason to prefer the reason of state framework is that what we tend to be talking about is not so much real or genuine emergencies as pseudo- emergencies – that is, moments of heightened tension as opposed to more serious or existential threats. The difficulties faced by Western states in the last decade or so cannot plausibly be described in terms of a state of emergency or a state of siege without doing radical disservice to those terms. What is more symptomatic is the increase in, and perhaps more aggressive use of, a particular element of state action, which centrally concerns a special type of authority claim that is normally attached to a plea for special measures and which invokes the state’s capacity as protective agent (salus populi). This element is so enduring that I think we must take it to be an ineliminable part of political life. It is true that there have been meaningful developments in this terrain at the international level, not least the UN Security Council targeted sanctions regime. And profound questions have been asked at the supranational level, most notably in respect of the legal order of the European Union. But, for better or worse, the main locus of activity in this area remains the state.
In former times, lawyers might well have been tempted to place the type of action we have seen within the sphere of the prerogative. That term is no longer appropriate, save perhaps as a metaphor. In Locke’s familiar definition, prerogative is a power to be exercised in the public good that operates extra et contra legem: that is, outside and against the existing framework of settled and standing laws. But governments today typically act on the basis of explicit legislative authority, or defend action by reference to a statute or regulation. They tend to operate, that is, for the most part within the existing legal framework. As a result, the problem we encounter lies not on the boundary where legitimate but extra-legal authority meets unauthorized political violence, but in the aberrant use of ordinary modes of legality for violent or morally dubious ends. Reason of state is a better guide through the modern configuration of what might once sensibly have been called the prerogative zone. Like prerogative, it is a concept with a considerable pedigree, not to mention baggage. But it is less tied to a particular jurisdiction or legal form. It can thus focus our attention squarely on what is important about this area, namely the idea of the state acting in the persona of custos, as guardian or protector of the regime of law – and the squeezing of the regime of law that seems to follow from such a claim.
Getting the conceptual vocabulary right matters. Politicians, courts, and citizens continue to face difficult questions in this zone, and applying the wrong framework risks making various types of error. We tend to respond differently – socially and psychologically, as much as politically and legally – according to how a problem is framed. This intuition is explored schematically in the first part of the paper, which examines three frameworks that are commonly drawn on by lawyers seeking to make sense of developments in this area: political emergency, liberal idealism, and reason of state. As these terms are explained shortly, I will not elaborate upon them at this stage, other than to say that my general argument is that the political emergency framework overdramatizes the legal problematic we face and liberal idealism seeks almost to wish the problem away. The reason of state framework offers instead, I suggest, a descriptively powerful theory.
The second part of the paper adds a more practical dimension to this conceptual study. It shows how the courts, for the most part, tend to avoid the logic of political emergency. Even where they are drawn into the language of ‘public emergency,’ as for instance when they decide questions relating to the exercise of a power to derogate from a human rights convention, courts tend to apply such language in an incomplete and half-hearted fashion. The recent jurisprudence on security matters makes more sense when seen through the lens of reason of state. Indeed, we have increasingly seen a wide variety of meso- and micro-level strategies and disputes, and these fit the logic of reason of state much closer than they do alternative accounts.
We turn finally to the role that rights play in reason of state decision-making. The fit is by no means a simple one. There is always a danger that rights serve to do little more than normalize and justify potentially aberrant state action. But from a liberal pragmatist perspective, rights continue on balance to provide a crucial part of a strategy to structure and constrain reason of state behaviour. Their most important function is to help open up and keep open a process of legal-political discourse and scrutiny.
