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.

The rule of law is a constant theme on South Sea Republic. For this reason an Australian Republican, as should any Republican, rejects that a state of exception exists when a nation is at peace, at war, or under external pressure of any kind. The rule of law is more precious than the ability of a government to act outside of the law.

The best example of not giving into despotic passions is James Madison in the war of 1812. Despite great pressured to do so, he would not relent his principles or the nations Republican virtue. He was firmly of the belief that doing so would make America and its people weaker. It was only through the embrace of Republican virtue that the American people were stronger than the invading British. History proved him correct.

Western governments faced with the problem of terrorism have quickly cast aside their virtue and plunged headlong into a permanent state of exception. As Giorgio Agamben argues, it has become a governing paradigm, rather than a temporary anomaly as the story of Cincinnatus tells us.

Gary Sauer-Thompson calls this method of governing the national security state as this embrace of security which can jump outside the rule of law allows for externally and internally focused exceptions of law. Government exceptionalism becomes all pervading. Agamben writes;

... the state of exception is not defined as a fullness of powers as pleromatic state of law, as in the dictatorial model, but as a kenomatic state, an emptiness and standstill of the law.

James Madison was able to reject this vice when he was President of the United States and facing war against the biggest super-power of the time. He was true to his Republican principles. The fall into governing in a state of exception as has happened in Australia and other Western democracies is a perversion.

It is anti-republican and anti-democratic.

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.

From the first article:

The National Assembly has given initial approval to a measure that would let President Hugo Chavez enact laws by decree for 1 1/2 years, a key step in what the leftist leader calls an accelerating march toward socialism.

The law is expected to easily win final approval next week in a second session of the legislature, which is filled entirely with Chavez allies.

Two things from this, one: parties can actively undermine liberal democracy and establish state's of exception. This occurred in the United States and even in Australia which has poor separation of powers anyway. A quick path to tyranny is party homogeneity in both the legislative and executive.

Two: the state of exception is the exact opposite to liberal democracy. The latter is impossible while a state of exception exists, and with Chavez getting an 18 month rule by decree he is effectively a permanent dictator. Venezuela is in trouble - already many of his economic plans suggest that Venezuela will be in for a rough ride in more ways than one.

Carl Schmitt wrote that without a friend-enemy relationship there was no political. This is a step up from the Hobbesian all against all, to many against few. Schmitt's argument was that the pluralism in liberalism, and its rejection of violence through absorption of liberty and moral consciousness, leaves the political bereft of meaning, so an 'other' has to be created to make the political - political.

There is an 'other' to liberalism and republicanism. It is the state of exception. Unitary government under the whim of the executive is tyranny. A state of exception, or state of emergency, or law by decree, or signing orders, or ley habilitante - whatever - they are all examples of tyranny and despotism within the appearance of separation of powers, constitutionalism and republicanism.

When the executive gets control of the legislative, and usually this is through the party machinery, arbitrary government becomes embedded in legislation. This bill in Venezuela to enable law by decree is an example. Australia has similar legislative issues, for instance the migration act amendment contains the language, "Minister to exercise power personally" which is governance by decree.

In a state of exception: liberal democracy, republicanism and individual moral consciousness cannot exist. In other words liberty is at the whim of tyranny. If western institutions are having a tough time dealing with the executive governing by emergency, then I suspect Venezuela will be in for an even rougher ride.

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.

Since marxism collapsed as a political and economic competitor to liberalism in the 1980s, conservatism has arisen as the new doctrine of governance to challenge liberal and republican forms of democratic governance. Liberal republicanism being a system predisposed to maximum liberty and with government balanced by three equal branches who act as checks and balances on each other.

Modern conservatism espouses government by exception, this is where the executive is elevated above the legislative and judicial and can act without checks or balances in the name of emergency. This is the closest thing we have to organised tyranny in a liberal democratic system.

Because the executive can act independently it becomes free of the rule of law, free from constitutional checks and balances, and free to act arbitrarily. The conservative conceit is that the executive philosopher kings will act in good faith to solve the emergency (usually national security concerns) and like cincinnatus give back the constitution in a time of non-emergency.

This a fallacy as new enemies are constantly being fabricated at home and abroad. A good example of emergency governance is in Washington DC - a local council - that uses all manner of emergency legislation to get past public oversight, regulations and even get to meetings on time. Permanent emergency has become a style of governance which Australia is not immune to.

Republicans, liberals, progressives and libertarians are going to have to be aware that this form of governance breaks the very components of liberal democracy. Modern conservatism and liberal democracy cannot co-exist they are different forms of government. Once a government goes into a state of exception, it is no longer liberal democracy - it is a new form of governance.

Nationalists need to be aware that this form of conservative governance affects them as well. Citizenship is not the protection from state discrimination any more. The executive is free to define the 'enemy' that requires the exception, and as Hicks shows, citizenship has no bearing on determining who the state will choose to isolate into a legal never-world.

I am not saying that conservatism is the enemy. I am saying that it is an inefficient form of governance that directly repudiates and trashes the liberal republican/democratic principles. As a system of government, republicanism and conservatism cannot co-exist.

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.

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.

An establishment of a state of exception requires several a priori: precaution against a plausible catastrophe, the executive taking over judicial expression and a submissive legislative who is willing to legitimize the exception in legislation.

Parliaments are on the backfoot in this area anyway, as the executive dominates the legislative and decides what bills are pushed through or hit the floor. With the recent dominance of the party-machines in Australia and the United States at the federal level we have seen the deliberative process destroyed entirely in the legislative.

In the United States the recent round of legislation which legitimizes exception governance is the Patriot Act. Amongst other things it allows the executive to avoid having Senate confirmation for US Attorney appointments. The recess clause in the US Constitution has often been used for exception appointments, that this got through in the Patriot Act is remarkable.

In Australia the Migration Act is the main source of legislative legitimization for exception governance. This is not new, the clause requiring fluency in multiple European languages from the 1950s is an example of legislation enabling adhoc and arbitrary executive and executive official's decisions.

There is an argument for Ministers and Executive Officials and Bureaucrats to have that power as individuals often use their representatives familiarity with the arcane behaviour of the modern state to navigate the bureaucracy. For instance my green card application was stalled until our local New Jersey Senator got involved. But this is a failure of the modern state's organisation and processes.

When an exception or emergency is established it makes the politics unitary. Unfortunately Carl Schmitt's description of all this is proving to be accurate. With the establishment of the exception the politics become us and them; not the competitive, deliberative and discursive nature of liberalism. Under an exception, the 'them' can be sacrificed to the politics.

As an example, in the United States in 2002 and 2004 during the Congressional and Presidential elections which were fought under the extended exception of the Great War Against Terrorism those that disagreed with politics of the executive were painted as traiters and treasonist.

The only reason this could be claimed was because the politics became unitary, and as a consequence the liberal nature of the system was removed and the politics of the state and election became the executive's.

Obviously civil libertarians and the political opposition can fight against this but they have to do so as a 'them' not as political competitors in a liberal political system.

So the establishment of exception drains the liberal out of liberal democracy.

Fortunately exceptions tend not to be absolute and are usually contained in small areas and for short periods of time, though they often threaten to became permanent emergencies.

It is interesting to note that the electoral season in the Australian federal system has already claimed two exceptions. The first was the Indigenous issues, and now the Haneef issue. Both cases absolutely required a justified level of government involvement; but they did not justify the establishment of exception.

In the Haneef issue, where the government was right to bring him in for questioning over his association with those that committed criminal acts in the UK, once the exception was established with the Migration Act and the gazumping of the judicial, the trial ceased to be in the ordered private space of the court room and instead became a political trial where guilt is still being fought over in the public political space.

The executive, the defendant and lawyer are arguing their cases in the media, not infront of an impartial judge. The executive has made the politics unitary and has taken over the judicial component of it as a political trial. It may be that Haneef should be locked up for association with known and active terrorists, but politics is not the way to determine it, the judicial is, lest it become tyranny of the majority.

In both cases of exception discussed above the political opposition acquiesced to the government. In the case of the national emergency over indigenous issues it was as a war cabinet. In the Haneef investigations the opposition agreed with the executive. Political dissent only came from the Democrats and Greens.

Anyone who thinks this form of exception governance is limited to conservative parties is kidding themselves. While it is a form of conservative governance (ie not liberal) the Labor Party is just as capable of using it to inform governance.

An example of this is the NSW Labor Government after the Cronulla Riots which passed the Law Enforcement Amendment that enables the confiscation of property and the isolation of an area. Effectively with police checkpoints. Again the civil libertarians and the judical become the political 'other'.

However this made the politics unitary as any dissent on the emergency becomes a 'them' or enemy of the emergency. Peter Debnam's only competitive movement without becoming a 'them' was to endorse stronger prohibitions within the emergency:

The Opposition supports rushing the bill through the House, but there are some difficulties about it. Opposition members do not oppose the passage of the bill but we wish to highlight a number of concerns with it. The bill simply is not strong enough in almost all its provisions.

That is how we get ludicrous speed legislation like the Law Enforcement Amendment and the Migration Act which never fall off the books and enable future exceptions.

Exception governance, apart from being repugnant to republicanism and trashing the liberal in liberal democracy, is actually becoming the norm at all levels of government as more and more executives see the value in exception becoming "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"

The binary differentiator in politics is now liberalism and conservatism. Exception governance manages to remove the liberal. In an election season it limits the scope of politics that can be liberally competed over as the areas of emergency effectively rope off the politics of the emergency from competition or deliberation. Unfortunately we are seeing exceptions increasingly being used as an electoral advantage.

Update - Ken Parish commented on troppo's missing link that this post did not mention Giorgio Agamben. State of Exception gets discussed often enough on South Sea Republic that I don't always explicitly mention that connection every time. Agamben mainly explored the legal nature of a state of exception where this post tries to explore the political aspects of it and the impact on electoralism and democracy.

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.

From the judgement:

30 As Callinan J's observation emphasises, in the proper administration of the lawful and efficient government of the nation, each of the arms of government - the parliament, the executive, and the judiciary - has a role to play, and each of the arms of government must pay due deference to, and not to intrude upon, the roles of the other arms of government.

31 The preceding observations demonstrate that there is no room for the view, sometimes uttered, that the executive should have exclusive responsibility over all matters involving national security.

32 True it is that the executive is charged with a heavy responsibility in matters of national security, but parliament has defined the limits defining the discharge by the executive of that responsibility, and it is for the judicial arm of government "to ensure that ministerial or other official action (is) lawful and within jurisdiction," as the plurality judgment at [104] of Plaintiff S157, set out at [23], makes plain.

Spender is stating that national security concerns cannot suspend the constitutional order defined by separation of powers. Spender is repudiating a state of exception or emergency governance.

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.

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.