Francois Debrix has a review of Jean-Claude Paye's Global War on Liberty. I have not read the book, but from the review it appears it focuses heavily on state of exception governance becoming the norm and 'morphing' a new legal order.

A state of exception is executive dominance of the legal order where it can make legislation and hand out judicial decisions. A parliamentary system has poor separation of powers since it combines the executive and legislative in one body. This is a structural weakness in comparison to republican systems such as the Washington system, but should be noted it has not stopped the US executive operating under a state of exception due to the war on terror.

Paye writes that under this exception the executive can "free itself completely from the last safeguards of legal order." It should be noted that is does not require terror for exception governance to be practiced. Australia governed the areas of immigration under exception, and the local council of Washington DC has been operating under a state of emergency legislatively and executively, the former for no good reason, and the latter because of an increase in crime in public areas.

This style of governance has expanded into western democracies at all levels. Paye argues that it is not about a short emergency to protect the constitution, nor is it just about a suspension of civil rights and liberties or a power struggle between the branches of government; it has "become a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats"

However Paye argues that isn't necessarily leading to totalitarianism like the Weimar Republic did. What is happening is that the legal order is morphing into one of a permanent state of exception that is dominated by executive whim (or branches of executive power) and arbitrary government.

The Migration Act Amendment of 2005 is a good example of the executive's dominance of parliament laying the legal order for a permanent state of exception. That this was used to gazump a judicial decision through fiat by a member of the executive cabinet shows the effect.

According to Debrix, Paye argues that this is different to totalitarianism or despotism as the executive's dominance has meant that this new legal order is layed in legislation and conventions (where the executive has asserted their sovereignty over the convention).

Consequently it does not matter who is in the executive position or who is occupying the executive branch's position (unlike a dictatorship) as the legal order will be one of adhoc executive decisions along with assertions of sovereignty and politics. It is interesting to note that federal Labor did not protest the Haneef decision to detain him in Villawood; nor the creation of a war cabinet for the Indiginous Issues emergency. A Labor executive will most likely operate under a similar exception form of governance.

Debrix writes:

In fact, as Paye implies, it probably does not fundamentally matter whether a country has been attacked by terrorists or not, as this (morphed) model of legal and political order always operates at the level of potentiality, plausibility, and precaution.

Operating on the assumption that some catastrophe may take place at any moment in a given society, the newly established legal regime permanently triggers a sovereign's interpretation, decision, and subsequent action (often as a limitation of basic freedoms).

It doesn't matter really matter what; something will be found to justify an emergency. It remains true however, that exception governance is repugnant and incompatible with republicanism and liberal democracy. The only constitutional mechanisms I can see to stop this is by placing absolute civil rights in the constitution and easier mechanisms for citizens to sue the government for their rights, or the rights of others.
Cam Riley: South Sea Republic. Freedom, liberty, equity and an Australian Republic.

Comments
  • adam . # . 2/2
    I guess we could be moving to a new normative order which does not recognise absolute political rights. In this sense the British ASBO is as much part of it as Guantanomo Bay. They both work towards a kind of omni-competence of the state within the political sphere.

    If you take that on board, the nearest model seems to be a high-surveillance rich world managed democracy. Like Russia, but with less corruption.
    • cam . # . 1/1
      It appears to be a bit more than that though as the executive can strip an individual of their full judicial expression too. The end result of that is that killing someone so stripped of their political identity means that it is not homicide. It is a new and very violent form of statelessness that we don't associate with liberal democracy.

      It also means that the legislative is no longer an independent energetic body as the executive consumes them in emergency. It is also interesting to note that when emergency is declared (and new bipartisan war cabinets constructed) it makes the politics of it unitary. The executive essentially owns the politics of the emergency entirely. Which is probably why emergency is popular in democracies as the executive takes full control of the politics and doesn't have to deliberate, compete or even have a policy - just requiring political reaction which is often arbitrary.

      • adam . # . 1/1
        Of course you're right: it's not liberal democracy, and is a pernicious trend.

        Identifying it as unitary is I think correct. The checks and balances in a mature democracy are some of its most inconvenient pieces for the impatient. This includes the separation of powers, but also state / federal divisions, government / opposition divisions, and so on.

        What managed democracies try to do is turn full blown separated powers into simple factions within the executive. Maybe the Italian medieval republics are a reference point?