William Milam
TFT Issue: 25 Jan 2019
The ‘state of exception’ is more likely to have been the basis for modern authoritarianism than of democracy, writes William MilamFacebookTwitterGoogle+WhatsAppEmailPrintFriendlyShare21
I write this on Monday, January 21, which in the US is a holiday celebrating the birth and the life of Martin Luther King (MLK). Outside, the temperature in the early afternoon of MLK day is 21 degrees Fahrenheit (about minus 6 Celsius), in other words below freezing. And the wind chill brings the temperature down to 7 degrees Fahrenheit (or about minus 14 Celsius). So it is not a day to venture out unless one was raised in the artic, and I was not; it is a day to sit inside and contemplate serious questions, like the future of democracy in a world where governments, like the Awami League government in Bangladesh can get away with what seems to be minimal penalty for stealing an election, and continuing its slide to authoritarianism. What better question to contemplate on the birthday of MLK, who was a hero to us all for expanding democracy significantly only 50 years ago.
I turn to an Australian columnist, Henry Ergas, whose latest column was sent to me, fortuitously, by a friend this morning. Ergas sees lessons and precedents from the ancient world as predictive of today’s major concern – the slow but steady decline of democracy throughout the world. His examples are the bedrock democracies of the West, the United Kingdom and the United States. These are worth thinking about as democratic governance in both the UK and the US seems particularly fragile right now.
Ergas takes his cue from a 1923 book, “The Crisis of Parliamentary Democracy, by the German political writer, Carl Schmidt, and particularly the theory expounded therein, “the state of exception.” This basically says that, at some point, liberal democratic institutions which exist to channel political solutions to major issues will inevitably collide with “popular will” when those institutions fail to do that—which Schmidt writes they inevitably will. Then comes the need for Schmidt’s “state of exception,” which Ergas describes as “the suspension of business as usual.” In other words, as Ergas writes, someone who, “when the system [becomes] unworkable, can impose an outcome by invoking emergency powers.” Although this book by Schmidt was written 10 years earlier, he later, in 1933, joined the Nazi Party and was dubbed “The Crown Jurist of Nazism.” He never recanted. And, in fact, this theory has been the basis for many authoritarian regimes, which should not surprise us. I will point this out below.
The AL government is not fully authoritarian yet, but I see no reason to think it might now stop in its movement toward a fully authoritarian state
Ergas notes that such thinking was not new in 1923 but, in fact goes back to ancient Greek city states which had used temporary dictatorships to get them through periods in which factional strife over some existential issue had pulled the city apart. He cites the Roman Republic where the same thing held true and is embodied in the legend of Cincinnatus who came from his farm for 16 days of absolute power and saved Rome from what historians think was an uprising of the common people which threatened the patrician upper classes, and after success returned to his farm. Ergas sees the Roman Republic’s custom of resorting to a dictatorship “to ensure things get done” as the model for what President Trump is threatening now—to declare an emergency at the US Southern Border to enable him to take money allocated by Congress to other purposes to get what he wants—5.7 billion to build a wall.
And there is no doubt that the US President has a wide array of emergency powers, written into the Constitution and law by those founders influenced by the Roman example. US Presidents have been increasingly tempted to use them to accomplish things they cannot get the Congress to agree to, almost always when the Congress is controlled by the other party. President Obama used these measures to act on many issues he deemed critical and which the Republican Congress he faced after 2010 basically had blocked, usually without any effort to find a compromise alternative. The difference between Obama and Trump—most of the Democrats in Congress backed Obama’s use of emergency measures as some were for actions they had supported as important, largely environmental regulations, that Republicans rejected out of hand, and some in response to the global financial crisis of 2008, for which both speed and discretion was necessary. But in the case of the border wall, few Republicans support using a made-up emergency to fund it, few even think the wall a good idea, and those that support the emergency idea are mostly looking for a way to get the president out of the corner he has painted himself into on this issue so they can vote to open the government, which the president has refused to do, holding the closed government as hostage to his totemic wall project.
But Obama didn’t start this; examples though much fewer and further between go back as far as Thomas Jefferson, who went over the head of Congress to purchase the Louisiana Territory in 1803 as incontrovertibly in the US national interest. No one would dispute that today. But clearly constant invocation of emergency powers is a dangerous risk as it will always work to strengthen the power of the executive branch over that of the people’s elected representatives.
Ergas invokes also the incredible muddle the British have come to over BREXIT as a situation that may provoke Schmidt’s “state of exception” as he sees no way out of this. PM May has lost power, he thinks, through losing control of the Parliament. She lacks the means, he says to overcome the clear impasse between the “will of the people” and the Parliament. I am much less informed about the UK political mess, but I wonder if BREXIT is really the will of the people. The democratic way out of this conundrum, it seems to me, is more democracy not less, in other words an election, a new government, and hopefully one to make a decision on its own about the either merits of leaving the EU or about the kind of withdrawal agreement that serves UK interests best, but if not one which is unafraid of another referendum.
The “state of exception” old as it may be is, however, more likely to have been the basis for modern authoritarianism than of democracy. A good South Asian example is its use, under the rubric of a juridical term, “the doctrine of necessity,” to justify repeated army takeovers of the Pakistan State. What else were those decisions based on except that doctrine allowing the imposition of a political outcome by the ultimate ruler of the political system. In the Pakistan’s case, the only question is whether it is the army or the Supreme Court is the ultimate ruler.
When it comes to Bangladesh, however, the issue is different and almost unique. What crisis could have spurred the dirtiest election since the Soviet Union went out of business and gives the authoritarian government the ability (and surely the will) to move further along the authoritarian spectrum? None except a crisis of confidence among the leaders of the Awami League (AL) that they might lose power. That might have been inspired by a feeling that there is a contradiction between what most Bangladeshis want and where the government is going. The evidence, in the form of polls, would have brought most to a different conclusion. But the leaders may have had different polls.
The AL government is not fully authoritarian yet, but I see no reason to think it might now stop in its movement toward a fully authoritarian state. And it will be an unusual one—the only one I can think of without an ideology. Apart from China, where communism remains the ideology of an otherwise capitalist/mercantilist state, most authoritarian states have a version of populism as their main ideology. Since it is a “thin” ideology they usually add so-called “thicker” ideologies—nationalism, liberalism, socialism— that can make them either left-wing populists or right-wing populists. But the core of populism is a belief in the goodness of “the people” as opposed to “the elite,” who place their interests or others, often immigrants, above the people. But the only reason I have heard for the authoritarian direction from the leaders of the AL government is more rapid development. So perhaps, the only rationale that resembles an ideology in the AL government is self-aggrandizement.
The author is a senior scholar at the Woodrow Wilson Center in Washington DC, and a former US diplomat who was ambassador to Pakistan and Bangladesh
The article appeared in the Friday Times on 25 January 2019