Obama is operating within the paradigm of a state of exception as well. This is consistent with the policies enumerated by Bush and Howard where there is no judicial or legislative and only arbitrary executive power. As Greenwald notes Bagram is the new synonym for this abuse of power.
Aaron Schwartz writes that increasing transparent government will only force more of the real power and decision making into the 'emergency procedures' which are done out of the public light.
If you visit a site like GovTrack, which publishes information on what Congresspeople are up to, you find that all of Congress's votes are on inane items like declaring holidays and naming post offices. The real action is buried in obscure subchapters of innocuous-sounding bills and voted on under emergency provisions that let everything happen without public disclosure.One of the problems with modern liberal democracy is the amount of government that is occurring in a state of exception. Emergency procedures fall under this form of governance. Sometimes, such as in Washington DC, this is taken to absurd levels. Schwartz's argument is that focusing on increasing transparency will only force more and more governance into exception. But it is being done anyway, so I fail to see what could be worse. Considering that a constitution I wrote included the injection of citizen auditors into the process I am in the group of constitutionally entrenching a 'keep the bastards honest' house in the political process.
The most famous tyrannicide in history is the killing of Caesar in the Senate at the hands of Marcus Brutus. Basically it is the killing of a tyrant in the name of the public good and to restore the democratic (or oligarchic) mores of state.
Most legal systems are premised upon the state having a monopoly on violence. Where any private violence is subject to the review of the state to determine its validity. Tyrannicide is outside of that system. It is based on the assumption that the state is no longer valid, usurped by the tyrant, and consequently tyrannicide is legitimate private violence against the tyrant. Lintott writes of Cicero's view on tyrannicide:
For us the disquieting features of this view are first the idea that a tyrant has no rights at all and no claim to justice, and secondly the extension of the principle to quasi-tyrants.The quasi-tyrant in Cicero's view was a demagogue who had a 'lasting hold on the populace' even if the demagogue had not used violence or force. The other side of Cicero's view of quasi-tyranny was the use of limited violence outside of the state legal system in order to save and restore the state - in other words a classic state of exception. There were legal positions in the Roman state, such as the Dictator, which existed in states of exception, so such principles were not unknown to the Roman system. It is unsurprising as Roman magistracy was a state based form of pater-familias and absolute power. Lintott continues:
Tyrannicide is therefore a permissible form of private violence (like that employed in defense of a tribune or against a thief) whose justification lies not only in political philosophy but in a specific legal provisio.Cicero's view of tyrannicide is expansive and enables the defense of the senatorial and equestrian order's power from the plebians and their demagogic populaire leaders. Consequently private violence can be used to maintain the status quo of state; whether in the death of a dictator-for-life tyrant like Caesar or populists like the Gracchi. This brings the use of private violence into the domain of politics. And like the state of exception becomes the line where politics and the judicial intersect. The use of violence for justice and redress becomes purely political.
Lee Malatesta : Aristotle argued that a tyranny, worse even than despotic rule, is not really a form of government but only has the appearance of a form of government. If there is no real state apparatus, then it is impossible for the state to have any monopoly, let alone one on violence. Consequently, tyrannicide is outside the rule of law but only because the rule of law has already been broken.
But admittedly, there is a very open question as to whether or not Rome held to the same idea regarding the office of a tyrant as did Aristotle.
cam : Cicero's view is overly expansive and dangerous. I have some empathy for tyranny being the absence of state/constitution, but the self-interest inherent in the violence to restore the constitution also makes me quesy. It is an interesting exploration of the over-lapping areas between private violence, politics and private determination of justice.
Lee Malatesta : Another consideration is that in the ancient world, the definition of a constitution was far more expansive than it is today. We tend to think of the Constitution as a document that serves as the highest law of the land. Folks in antiquity tended to view the entire government as manifested as the constitution. Even if no laws were changed, by becoming `Caesar', Caesar changed the constitution, the form of the government. Seen in that light, it's easier to see how tyrannicide could be considered saving the constitution.
In a previous article on Judicial Doctrines I discussed the doctrine of Judicial Review. This is where the court can decide not to enforce a law that is unconstitutional. In the Haneef vs Minister for Immigration the law wasn't unconstitutional - mainly because there is no constitutional tests such as a Bill of Rights in the Australian Constitution. However, the Judge felt obliged to justify the doctrine of Judicial Review in the judgement. By doing so Spender is nullifying exception or emergency governance in the area of national security and immigration. (more)
One of the results of an exception being created is that the politics become unitary. Essentially the politics around the exception or emergency become the executive and executive's alone. The health of liberal democracy is dependent upon political competition, discussion and deliberation. Removed of its liberal component democracy is reduced to the mechanical action of voting. (more)
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. (more)
adam : 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 : 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 : 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?
I know Avo is of the opinion that any op-ed which uses television to make a point turns the argument into farce; however, Albrechtson is arguing for a permanent state of exception and directly repudiating liberalism. (more)
avocadia : Moral relativism to the rescue:
Like any good Democrat, Jed is troubled. Let\'s bring him to court, he says. Can\'t happen, responds Leo McGarry, the tough-minded chief of staff. He tells the president: \"This is the most devastating part of your liberalism. There are no absolutes.\"I believe an important part of the rhetorical tool chest of any writer is the ability to spot a contradiction. \"Can\'t happen\"...why, that appears to be some kind of absolute position, one that affirms that in absolutely - ooh, there\'s that word - no way can he - an ambassador, if you must know - be brought to court. And then somehow, in the next sentence, ooh, that filthy liberalism says it has no absolutes. A reader somewhat less dismissive of an already farcical might point out that in this case it is the pro-assassination argument and what it represents that lacks any absolutes. No longer can the citizens of the US, or the resident ambassadors rely on the absolutes of the law. No. Now they are subject to the whims of President Jed Bartlett. Moral relativism to the rescue!!
avocadia : Ambassador: Minister. Ambassador? Meh, either way there are still laws against the assassination of them.
adam : I think the conservative label is misleading: Bush, after all, is happily tearing into two hundred year old constitutional guarantees. I think the idealisation of the Executive is close to the heart of it.
cam : I dont think so: the old style conservatism, Burke, or Goldwater, has been absorbed by liberalism, what is left is a Schmitt style of conservatism that is internally conflicted and incoherent; with no genuine answer to liberalism. Modern conservatism is in the model of Carl Schmitt.
cam
A common failure we are seeing in the separation of powers doctrine, especially in political systems with formal branches for executive and legislative (not dumped together in the House/Assembly like they are in parliamentary systems) is the state of exception where the legislative sidesteps their responsibility and allows the executive to rule by decree. This is happening in Venezuela with ley habilitante. (more)
From Multitude;
The idea of Republican virtue has from its beginning been aimed against the notion that the ruler, or indeed anyone, stands above the law. Such exception is the basis for tyranny and makes impossible the realisation of freedom, equality and democracy.I would add prosperity to this list too. (more)
