A protester holds a banner reading: " Stop of state of emergency" during a protest in Paris on 30 Jan 2016. Christophe Ena / AP/Press Association Images. All rights reserved.French Prime Minister Manuel Valls recently called for France’s state of emergency to remain in place until ISIS has been eliminated. This is in addition to President Hollande’s push to amend the French constitution while making some of the currently expanded police powers permanent. Most controversially, Hollande is proposing a measure that would allow the government to strip certain natural-born French citizens of their citizenship should they be convicted of terrorist-related activities.
The present state of emergency is due to expire at the end of February; a war to fully eradicate ISIS is likely to take years. Since the 13 November attacks in Paris, security forces have conducted thousands of raids in immigrant communities across France and placed hundreds under house arrest. Despite government claims to the contrary, there is little evidence that these additional police powers have made a substantial difference. Meanwhile, human rights groups have documented massive abuses (see here, here, and here), while thousands are marching to demand the end of these draconian policies.
That such policies of exception will erode the democratic life of society is not a risk—it is inevitable. The idea of a “state of emergency” is predicated on a model of political militarisation ill-suited to the needs of Western democratic society in the twenty-first century. Such blanket curtailments of basic rights will endanger the democratic integration of residents and citizens of Muslim background at a time when such efforts at integration are as essential as they are fragile.
“State of emergency” in an age of terrorism
The idea of a state of emergency in France is designed as a less extreme version of the French “state of siege,” and both follow a long tradition of suspending constitutional liberties and procedures (in part or in whole) while granting extraordinary powers to the state in times of extreme peril. Like the ancient Roman “dictatorship” or British “martial law,” the “state of siege” was devised primarily for the tasks of fending off a large enemy invasion or putting down armed revolt.
Even under the best circumstances, instituting such emergency measures can be a tricky matter for modern democracies. The ability of states to enact such militarising measures without running roughshod over basic constitutional liberties has greatly depended, among other things, on the ability to easily identify the “enemy” and to say with certainty when it has been defeated.
This was easier when states faced a uniformed foreign army. Even then, however, the record has been spotty, with a legacy that includes not only the mass internment in the U.S. of over 100,000 Japanese-Americans during World War II but also the indiscriminate branding of hundreds of thousands of Italian and German nationals as “enemy aliens.” A number of Jewish refugees fled the grips of Hitler’s genocidal machine only to find themselves in a British or American internment camp for suspected Axis sympathies.
As American policy after 9/11 made plain, waging a military war against terrorism is even more complicated. Not only is the “enemy” less clearly identifiable than in conventional interstate warfare, there is no clear way of knowing when it has been “defeated.” Emergency restrictions of constitutional rights invoked in the name of counterterrorism policy are bound to be less focused and more likely to become permanent.
A decade and a half after 9/11, American forces remain mired in conflicts in Afghanistan and Iraq, the Guantánamo Bay prison remains in operation and while the USA Patriot Act has been formally allowed to expire, the damage has already been done. In addition to fostering an atmosphere of widespread discrimination and abuse against residents of African and Asian background, the post-9/11 “national security state” opened the gates to new waves of state-sanctioned abuse against African-American and Latino communities. This includes near-open racial profiling, indefinite detention of immigrants known to have no links to terrorism, and hundreds of new state and federal regulations targeting foreigners. These are all in addition to Edward Snowden’s revelations that the US government had been secretly compiling databanks of private communications and personal information of American citizens.
For all the violations committed in the name of America’s “War on Terror,” two things bear remembering: first, neither the USA Patriot Act nor any other piece of legislation authorised anything like the massive raids, house arrests or general bans on public protests instituted by the French state of emergency; and second, the US still had the luxury of knowing that most of the terrorist operatives it was looking for were coming from outside the United States. Of the nearly 800 inmates of the famed Guantánamo Bay prison camp, only one carried American citizenship, and none were apprehended on American soil.
As Petra Gümplová notes, the bulk of terrorist action carried out in Europe over the past decade have been by so-called “homegrown terrorists.” If the cost of American counterterrorism policy has been endless war abroad, intrusions on privacy at home and a general climate of prejudice and paranoia, a comparable European “War on Terror” carried out through formal suspensions of rights can only entail a waging of war against its own population—and against its Muslim population in particular.
As the Muslim population of Europe has been projected to reach 8% over the next fifteen years, a strategy of war cannot be of benefit to European democracy. Ironically, this is reported to be exactly the war ISIS wants to see.
States of emergency undermine European Democracy
The idea of a “state of emergency” rests on a fundamental premise of the Western political tradition: the first question of politics is to establish and maintain order. In political philosophy, this premise is given its most vivid illustration in Thomas Hobbes’s famous description of “a war of everyone against everyone.” Hobbes postulated that, without the coercive power of the state, society would disintegrate, reducing each person to an existence that is “solitary, poor, nasty, brutish, and short”.
The lesson of Hobbes’s thought experiment is that the establishment of order by state power must be the first priority of political society and any other aspiration of society comes second: without order, no rights; without order, no justice; without order, no democracy.
If Hobbes’s hypothetical war of all against all tells us why we must prioritise order over democracy, it also tells us why this priority of order is nevertheless consistent with it. Society as such will crumble without the State, therefore there is no group in society that could benefit from such a condition. The power of the state protects everyone equally because the risk of disorder is a danger to everyone equally. Since we are all in the same boat, the need to prioritise order over rights, justice, and democracy is still a collective good that serves all of us.
But this story was always a fiction. Real societies are suffused with differences and inequalities, with different groups enjoying different levels of status, influence, power, and privilege. Historically these appeared along such divisions as rich versus poor, men versus women, Catholic versus Protestant, Christian versus non-Christian. Today, they increasingly appear along the lines of native versus “foreign,” a label that often persists beyond the first generation of immigrants to their children and grandchildren.
Most of our liberal-democratic institutions were developed precisely to rectify these status imbalances and divisions: directly, through constitutionally regulated civil procedure, protections on free expression, association, conscience, and privacy, rights to political participation and representation, and prohibitions against discrimination; indirectly, through public services, health and education policy, unemployment insurance, pensions, and additional social policies geared toward ensuring that persons can enjoy the full benefits of being a member of society.
These guarantees and protections by themselves are not enough to secure equality—large imbalances persevere in every liberal-democratic society—but they at least give the less advantaged the minimal rights necessary to pursue greater equality as true members. They represent the commitment of a free state to an ongoing pursuit of an inclusive and democratic republic.
Yet it is precisely these guarantees and protections that are negated by the doctrine of “emergency.” The emergency state asks us to surrender to its authority on the grounds that we are all invested in the security of our state as equals, while stripping us of the guarantees and protections needed to make us equals in the first place. The sacrifice asked by an emergency regime, by its very logic, cannot be equal for everyone. More often, it takes the form of those in power demanding the sacrificing of rights by the less powerful, many of whom have little to hold onto in society but those rights.
A state can only be as liberal or as democratic as its willingness to protect and give voice to its most vulnerable members. At its best, the supposed “trade-off” of liberty for security buys security for the privileged with the liberty of the less so. In the case of Europe in general and France in particular, it will not even accomplish that. The march of globalisation and its ever-increasing flow of goods, ideas, and people across borders means that any advanced society worth its name will be an immigration society—one where large numbers of “outsiders” mingle and live side-by-side with traditional “insiders.” The future of European democracy depends on their acceptance and integration as full and equal members of European society.
The kind of “state of emergency” imposed in France is fundamentally at odds with this reality. It is a relic of the outdated image of a culturally unified and bounded nation-state whose main security threats came from other culturally unified and bounded nation-states. The Islamic State is not that kind of threat and the fight against homegrown terrorism requires the active cooperation and trust of those communities an emergency regime would alienate by depriving them of their own sense of public safety. This model of the nation-state has little place in the diverse democratic societies of today.