Liberal Disorder, States of Exception, and Populist Politics 2020033048, 2020033049, 9780367425234, 9780367853280

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Liberal Disorder, States of Exception, and Populist Politics

Liberal democracy is in trouble. This volume considers the crosscutting causes and manifestations of the current crisis facing the liberal order. Over the last decade, liberal democracy has come under mounting pressure in many unanticipated ways. In response to seemingly endless crisis conditions, governments have turned with alarming frequency to extraordinary emergency powers derogating the rule of law and democratic processes. The shifting interconnections between new technologies and public power have raised questions about threats posed to democratic values and norms. Finally, the liberal order has been challenged by authoritarian and populist forces promoting anti-​pluralist agendas. Adopting a synoptic perspective that puts liberal disorder at the center of its investigation, this book uses multiple sources to build a common historical and conceptual framework for understanding major contemporary political currents. The contributions weave together historical studies and conceptual analyses of states of exception, emergency powers, and their links with technological innovations, as well as the tension-​ ridden relationship between populism and democracy and its theoretical, ideological, and practical implications. The book will be of interest to scholars and students of a number of disciplines in the humanities and social sciences: history, political science, philosophy, constitutional and international law, sociology, cultural studies, anthropology, and economics. Valur Ingimundarson is Professor of Contemporary History at the University of Iceland and Chair of the Board of the EDDA Research Center. Sveinn M. Jóhannesson is Fennell Early Career Research Fellow in American History at the University of Edinburgh and teaches at the University of Iceland.

Routledge Studies in Anti-​Politics and Democratic Crisis Series Editors: Jack Corbett, University of Southampton and Matt Wood, University of Sheffield

This book series aims to provide a forum for the discussion of topics and themes related to anti-​politics, depoliticisation, and political crisis. We supposedly live in an anti-​political age in which popular disaffection threatens to undermine the very foundations of democratic rule. From the rise of radical right-​wing populism through to public cynicism towards politicians, institutions and processes of government are being buffeted by unprecedented change that have in turn raised questions about the viability of seemingly foundational practices. The series is intentionally pluralistic in its geographic, methodological and disciplinary scope and seeks works that push forward debate and challenge taken-​for-​granted orthodoxies. For a full list of available titles please visit www.routledge.com/​Routledge-​ Studies-​in-​Anti-​Politics-​and-​Democratic-​Crisis/​book-​series/​RSAPDC. Refiguring Democracy The Spanish Political Laboratory Ramón A. Feenstra, Simon Tormey, Andreu Casero-​Ripollés and John Keane Re-​thinking Contemporary Political Behaviour The Difference that Agency Makes Sadiya Akram Political Meritocracy and Populism Cure or Curse? Mark Chou, Benjamin Moffitt, and Octavia Bryant Liberal Disorder, States of Exception, and Populist Politics Edited by Valur Ingimundarson and Sveinn M. Jóhannesson

Liberal Disorder, States of Exception, and Populist Politics Edited by Valur Ingimundarson and Sveinn M. Jóhannesson

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Valur Ingimundarson and Sveinn M. Jóhannesson; individual chapters, the contributors The right of Valur Ingimundarson and Sveinn M. Jóhannesson to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-​in-​Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-​in-​Publication Data Names: Valur Ingimundarson, editor. | Jóhannesson, Sveinn M., editor. Title: Liberal Disorder, States of Exception / edited by Valur Ingimundarson and Sveinn M. Jóhannesson. Description: Abingdon, Oxon ; New York, NY : Routledge, 2021. | Series: Routledge studies in anti-politics and democratic crisis | Includes bibliographical references and index. Identifiers: LCCN 2020033048 (print) | LCCN 2020033049 (ebook) | ISBN 9780367425234 (hardback) | ISBN 9780367853280 (ebook) Subjects: LCSH: Liberalism. | Democracy. | Populism. | Authoritarianism. Classification: LCC JC574 .L53 2021 (print) | LCC JC574 (ebook) | DDC 320.5–dc23 LC record available at https://lccn.loc.gov/2020033048 LC ebook record available at https://lccn.loc.gov/2020033049 ISBN: 9780367425234 (hbk) ISBN: 9780367853280 (ebk) Typeset in Times New Roman by Newgen Publishing UK

Contents

List of illustrations  List of contributors  Preface  List of abbreviations  Introduction 

vii viii xi xiii 1

VALU R I N G I MU N DA R SO N A N D SV EI N N M.  JÓHANNES S ON

PART I

Liberal democracy and the use of exceptional powers 

25

1 Carl Schmitt’s conception of sovereignty, the UN Security Council, and the instrumentalization of the “state of exception” 

27

H AN S KÖC H L ER

2 Right, might, and technopolitics: the problem of republican dictatorship from James Harrington to James Madison 

45

S V E I N N M.  J ÓH A N N ESSO N

3 Exception as alibi: rhetorics of emergency and bare life in the War on Terror 

71

AL E XAN D RA S.  MO O R E

4 Tactics of battle, strategies of state: Hurricane Katrina and the counterterror exception 

90

J E N N I F E R N. RO SS

5 Exceptional biometrics  P E T E R H I TC H C O C K

112

vi Contents PART II

The liberal state: populist, authoritarian, and corporate challenges 

127

6 A theory of populist democracy 

129

NAD I A U RBI NATI

7 The populist right: anti-​liberal politics and conservative temptations 

145

VALU R I N GI MU N DA R SO N

8 Public engagement: an outline of a critical conception 

163

J ÓN ÓL AF SSO N

9 Corporatism and economic performance 

188

J UAN V I C E NTE SO LA A N D G Y LFI ZO EG A

Index 

219

Illustrations

Tables 8 .1 Four democratic combinations or outcomes  8.2 Main groups in democratic governance: strengths and limitations 

165 177

Figures 9.1 The Heritage index of economic freedom and employment protection  9.2 The Heritage index and unemployment  9.3 The Heritage index and labor force participation  9.4 Central government debt and average inflation in the 1970s and 1980s  9.5 Average inflation and the Heritage index  9.6 Central government debt and the Heritage index 

204 205 206 208 209 210

Contributors

Editors Valur Ingimundarson is Professor of Contemporary History at the University of Iceland and Chair of the Board of the EDDA Research Center. His research interests are in the fields of geopolitics, the politics of memory, and security. He is currently working on the relationship between populism and authoritarianism. He has been a Visiting Professor/​Scholar at several institutions, including the Centre for International Studies (CIS), London School of Economics, the Paris-​based École des hautes études en sciences sociales (EHESS), the Royal United Services Institute (RUSI), and the Otto Suhr Institute, Center for Transnational Relations, Foreign and Security ATASP at the Freie Universität in Berlin. Sveinn M. Jóhannesson is Fennell Early Career Research Fellow in American History at the University of Edinburgh and teaches at the University of Iceland. He completed his Ph.D. at the University of Cambridge in 2018, where he received the Sarah Norton dissertation prize. His research focuses on the political, intellectual, and cultural history of nineteenth-​century America, with a particular emphasis on issues of state-​building, science and technology, and emergency government. His work has been published in the Journal of American History.

Contributors Peter Hitchcock is Professor of English at Baruch College and the Graduate Center of the City University of New  York (CUNY). He specializes in literary and cultural theory and is currently working on the relationship between postcoloniality and the state. He is also on the faculty of the Women’s Studies and Film Studies at the Graduate Center and is the Associate Director of the Center for Place, Culture, and Politics at the Graduate Center. Hans Köchler is University Professor Emeritus and former Chairman of the Department of Philosophy at the University of Innsbruck, Austria. His

Contributors  ix research focuses on anthropology, political, legal, and social philosophy, and cultural hermeneutics. Köchler is currently member of the faculty of the Academy for Cultural Diplomacy (Berlin/​New York), member of the board of the University of Digital Science (Berlin), and President of the Vienna-​based International Progress Organization (IPO), an NGO in consultative status with the United Nations. He also serves as Co-​chair of the International Academy for Philosophy, Coordinator of the Vienna Center for Global Dialogue, and member of the Advisory Council of the International Movement for a Just World (JUST), Malaysia. Alexandra S. Moore is Professor of English and Co-​director of the Human Rights Institute at Binghamton University. She has published widely on representations of human rights violations in contemporary literature and film. Her current research is on the stories that black sites in the War on Terror show and tell. Jón Ólafsson is Professor of Cultural Studies at the University of Iceland. His research interests combine cultural theory and political philosophy, and his most recent academic works deal with political culture, including dissent and protest action, epistemic democracy, democratic engagement, and democratic constitutional design. He has also worked with the Icelandic government on projects on ethics in government and is currently chairman of the board of Transparency, an association against corruption associated with Transparency International. Jennifer Ross is a Ph.D.  candidate at William & Mary in Williamsburg, Virginia. She received dual BA degrees in Honors English and History, as well as her MA in English at the University of Michigan-​Flint. Ross’s dissertation examines the developing counter-​terror state by counterpoising the September 11 attacks and the aftermath of Hurricane Katrina. Her research interests include the structure and function of state power, neoliberalism, disaster literature, American racisms, and digital humanities. Juan Vicente Sola is Professor of Institutional Law at the University of Buenos Aires, a Director of the Center for Law and Economics Studies, Buenos Aires University, and a foreign member of the Center on Capitalism and Society. He is also a member of the National Academy of Moral and Politicas Sciences and the National Academy of Law and Social Sciences of Buenos Aires. His research has included the relationship between Keynesian economics and the law as well and corporatism. Nadia Urbinati is Kyriakos Tsakopoulos Professor of Political Theory at Columbia University. She specializes in modern political thought and democratic and anti-​democratic traditions. She has written extensively on the relationship between democracy and populism. She was a co-​ editor with Andrew Arato of the academic journal Constellations:  An International Journal of Critical and Democratic Theory. She is a member

x Contributors of the executive committee of the Foundation Reset Dialogues on Civilization. She has been a member of the School of Social Sciences of the Institute for Advanced Study, Princeton University, and a Laurance S.  Rockefeller Visiting Fellowship in the University Center for Human Values, Princeton University. She is permanent visiting professor at the Scuola Superiore de Studi Universitari e Perfezionamento Sant’Anna of Pisa (Italy), and taught at Bocconi University (Milan), SciencesPo (Paris), and the University UNICAMP (Brazil). Gylfi Zoega is Professor of Economics at the University of Iceland and Birkbeck College, University of London, and a foreign member of the Center on Capitalism and Society. He is also a member of the Central Bank of Iceland’s Monetary Policy Committee. He has had a long-​ standing research partnership with Nobel Prize-​winner Edmund S. Phelps. His research interests include financial turbulence, values and labor market outcomes, and entrepreneurship and human capital.

Preface

This edited volume deals with the various manifestations of the crisis facing the current liberal order. The focus is on how exceptional powers have been conceived, instrumentalized, and normalized by governments to respond to societal disruptions; how liberal democracy has been challenged by authoritarian and populist forces, promoting anti-​pluralist agendas; and how the shifting interconnections between technology and public power in exceptional circumstances pose a risk to democratic values and norms. The full political, economic, and social ramifications of the COVID-​19 crisis remain to be seen. But the initial and short-​term responses to it—​even if they varied wildly—​ exposed tendencies for governments to adopt emergency measures, for authoritarian leaders to expand their powers, and for authorities to enforce draconian surveillance measures as part of a state of exception. This book seeks to address these challenges to liberal democracy by engaging with specific theoretical and empirical issues. The theory of the state of exception is analyzed from a variety of perspectives by looking at the arguments of its main articulators, Carl Schmitt and Giorgio Agamben, and other theorists, including James Harrington, as well as by applying it within different contexts, such as the War on Terror, the response to Hurricane Katrina, and the absolutist power structure of the UN Security Council. The exceptional implications of new technologies, such as the role of biometrics in the EU’s response to immigration, are explored from historical and contemporary perspectives. The analysis of the interlinks between democracy, liberalism, populism, and authoritarianism involves several approaches:  a theory of populist democracy; an attempt to historicize populist ideologies, practices, and formations; an interpretation of political agency and participatory processes in democratic decision-​making; and an analysis of the historical, political, and economic implications of corporatism. The idea of the book stems from a 2018 conference held in Reykjavik on states of exception, which was organized by the EDDA Center in Critical Contemporary Research at the University of Iceland in collaboration with the Nordic research network ReNEW (Reimagining Norden in an Evolving World). We are grateful to all those who have backed this project. A grant from the Icelandic Research Council (Rannis) has enabled EDDA to pursue various

xii Preface transnational research endeavors. The ReNEW excellence hub is funded by the NordForsk organization under the Nordic Council of Ministers. We would like to thank Routledge and its editors for excellent cooperation and for making the publication of this work possible. Senior editor Rob Sorsby navigated us through the publishing process with much care, support, and encouragement; we also want to express our appreciation to editorial assistant Claire Maloney and copyeditor Sarah Enticknap. The comments by the external reviewers as well as others who have read the manuscript were helpful in sharpening our focus and improving the final product. We are indebted to friends, colleagues, and students at various institutions who have contributed, in various ways, to the book. We would like to mention specifically Ira Katznelson, Haldor Byrkjeflot, Irma Erlingsdóttir, and Svanhildur Ástþórsdóttir. Finally, we would like to thank the authors for their faith in the project and for making it such a worthwhile undertaking. Valur Ingimundarson Sveinn M. Jóhannesson

newgenprepdf

Abbreviations

CIR ECOSOC DOD DHS GDP IEEPA EEA EU ECB ICC ILO IHL OECD MIDAS PISCES PSC RDI TCN UCMJ UN

Common Identity Repository United Nations Economic and Social Council Department of Defense (United States) Department of Homeland Security (United States) Gross Domestic Product International Emergency Economic Powers Act European Economic Area European Union European Central Bank International Criminal Court International Labor Organization International Humanitarian Law Organization for Economic Cooperation and Development Meaningful Integration of Data Analytics and Services Personal Identification Secure Comparison and Evaluation System Private Security Contractor Rendition, Detention, and Interrogation Third-​Country National Uniform Code of Military Justice United Nations

Introduction Valur Ingimundarson and Sveinn M. Jóhannesson

Liberal democracy is in trouble. At the turn of the twenty-​first century, its global momentum seemed irresistible, yet, triumph has, in the last decade, turned into retreat as a result of a convergence of corroding challenges. In response to seemingly endless crisis conditions—​ spurred by pandemics, terrorism, political and social unrest, and financial crises—​governments have turned to extraordinary measures derogating the rule of law, personal liberty, and democratic processes.1 Since the terrorist attacks on September 11, 2001, renewed concerns about national security have strengthened executive power at the expense of legislatures and courts, backed up by ever more powerful systems of surveillance. This is what Italian philosopher Giorgio Agamben has termed the normalization of “states of exception.”2 Following the Great Recession in 2008, central banks across the world have likewise operated in a permanent crisis mode3—​which was starkly brought home by the COVID-​ 19 outbreak in 2020—​underwriting the global economy with government stimulus through their unrivalled capacity to take “decisive action” in emergency situations.4 Recent authoritarian and populist successes—​whether they are temporary or not—​have further contributed to the “illiberal moment.”5 Some states, which in the 1990s and early 2000s seemed to be undergoing “democratic transitions,” have reembraced authoritarian forms of rule. The “Arab Spring” fast petered out as countries imposed new military dictatorships or collapsed into prolonged civil war. Since the recent financial crisis, populist and far-​ right parties in established democracies have eaten into long-​standing support for mainstream parties on the Left and Right. They frame their agenda in an antagonistic relationship between the “people” and elites, claiming to empower groups that do not feel represented by the political establishment. Adherence to purist national pasts and cultural homogeneity based on historical myths is another trait shared by populists across the globe. Populism has not only had enormous impact on discourses on immigration, multiculturalism, and supranationalism; it has also triggered a backlash against “liberal internationalism.” To be sure, populism’s promise of democratic renewal has been vigorously challenged by defenders of liberal democracy.6 But in an age of social inequalities and technocracy, the tension-​ridden relationship

2  Valur Ingimundarson and Sveinn M. Jóhannesson between liberalism and democracy may also hold some explanatory power with respect to the slide toward authoritarianism and the support for populism.7 It has, furthermore, raised questions about how anti-​liberal forces have been accommodated within the liberal order and how their ideological agendas have influenced the political mainstream. Democracies have certainly shown that they are highly adaptable and that they can resourcefully navigate shocks and unexpected disruptions. Still, crises disfigure. At the dawn of the Atomic Age, political scientist Clinton Rossiter warned that constitutional states tend to emerge from crises less liberal and less democratic.8 The dramatic expansion of surveillance capabilities,9 which was a product of the 9/​11 exception, is a case in point.10 While modern history of organized propaganda and information wars has deep roots in the twentieth century, events such as the Facebook-​Cambridge Analytica scandal, the Brexit referendum, and the U.S. presidential elections in 2016 seemed to illustrate that behavioral data sets, algorithms, and social media platforms make digital disinformation operations much more effective.11 Whether the COVID-​19 crisis will serve as a platform for comprehensive systems of bio-​surveillance and algorithmic regulation or a catalyst for enhanced public scrutiny and democratic control remains to be seen. But whatever the long-​term impact of the crisis, the call for enhanced surveillance, coupled with the migration of work, study, socializing, and political participation into the digital sphere, has made such questions imperative for a democratic future.

Rationalizing the emergency Scholarly debates on emergency powers have in past decades been dominated by the presence of German legal theorist Carl Schmitt.12 Schmitt coined the concept of the “state of exception” to account for the exercise of emergency rule, which was precipitated by a crisis that demanded the suspension of the law itself. According to his much-​quoted dictum, “the sovereign is he who decides on the exception” to the law or whether to step outside the rule of law in the public interest.13 When faced with an existential threat, he argued, the liberal constitutional order proved powerless because it could not be safeguarded by constitutional provisions, but only by an extra-​legal authority. Liberal states must either abandon their pretentions to neutrality and formal procedure or succumb to their enemies. To Schmitt, liberalism’s commitment to neutrality meant that it was incapable of upholding the first obligation of the state: to protect its members from violence and danger. Schmitt’s association with Nazism cast a deep shadow over his career and works. But having spawned a large body of scholarship in the last few decades, his ideas continue to interest a wide range of interpreters, especially his critique of liberal democracy and his interpretation of sovereignty and executive decisionism. The relevance of his argument that the central concepts of public law change under the impact of political events was reaffirmed in the wake

Introduction  3 of 9/​11, when the United States and other liberal democratic states adopted new emergency powers, circumventing constitutional provisions as a way of strengthening executive power. Schmitt’s views of emergency power, which place exceptional circumstances outside the bounds of the law, have been employed to serve a great variety of theoretical and political ends. Critics on the Left, such as Giorgio Agamben and Nasser Hussain, engage with Schmitt’s ideas to reveal the hypocrisy of law or its true nature as an instrument for the proliferation of sovereign violence.14 For other critical scholars, they show the limits of legal restraints on executive power that necessitate alternative forms of democratic action and popular mobilization to prevent abuse.15 By contrast, defenders of the post-​9/​ 11  “security state” on the Right use Schmitt’s analysis to justify the ascent of an all but permanent emergency-​centered executive government that is largely unchecked by legal and constitutional mechanisms.16 It speaks to the continued significance of Schmitt’s critique of liberalism that the debate over the exceptional powers during the COVID-​19 crisis has been heavily influenced by his thought.17 While Agamben draws on Schmitt’s interpretation of sovereignty, he is more interested in the question of “when exception and rule become undecidable”—​or when the state of exception becomes permanent.18 With the creation of cordons sanitaires, the enforcement of domestic seclusion, and the militarization of city centers in response to COVID-​19, it should perhaps not have come as a surprise that Agamben wasted no time restating his argument about such an exceptional situation being a normal practice of government. Just as freedom had to be suppressed to defend it against terrorism, he claimed, “life must now be suspended to protect it”19 as part of a biopolitical manifestation of modern sovereign power. It is true that Agamben opened himself up to severe criticisms for trivializing—​in the beginning—​the severity of the pandemic, for failing to engage with the scientific argument for the need to adopt exceptional measures, such as social confinement, and for offering no explanation of how governments could have wanted to create a global economic crisis as a power-​grabbing strategy.20 As Slavoj Žižek has pointed out, such a social interpretation reduces all forms of monitoring to repressive surveillance, and active governance in the form of crisis management to nefarious political plots or hidden authoritarian or totalitarian designs.21 To evoke, as Agamben does, the notion of “objective conspiracies that seem to be directed without an identifiable subject”22—​or, to put it differently, conspiracies without conspirators—​to account for government response to COVID-​19 can be equally problematic. Such an argument is akin to that put forward in the debate over the causes of the 1933 Reichstag fire that Hitler had “turned into” a dictator through a “random act” committed by a Communist working alone.23 That the Nazis—​who were bent on destroying parliamentary democracy and establishing a dictatorship—​would have found ways to dismantle the rule of law without setting the parliamentary building on fire goes without saying.

4  Valur Ingimundarson and Sveinn M. Jóhannesson Yet there is no reason to dismiss Agamben’s point about looking critically at how governments can exploit or manage states of exception. Extraordinary measures can be disproportionate to the severity of the crisis or expanded beyond their duration. Agamben used China as an example of a state that found an ideal opportunity to test the possibility of isolating and controlling an entire region. The Chinese regime did not, of course, need the outbreak of a deadly virus to show or exercise its absolute power. A perhaps more relevant example is Hungary, where the pandemic was seized upon to further the autocratic ambitions of Prime Minister Viktor Orbán and his Fidesz Party, which enjoys a two-​thirds parliamentary majority. A law giving Orbán the right to rule by decree to fight the pandemic included provisions for imprisonment of those found guilty of spreading what was termed “false” or “distorted” information, which could easily be used against political opponents to stifle dissent. Not all backsliding, however, takes the form of Orbán-​style “enabling acts.” Even temporary exceptions and restrained derogations tend to linger on. They often remain on the books as a permanent part of the executive’s toolbox, expanded over time by its lawyers, and acquiesced to by legislatures, courts, and the public, resulting in a recalibration of ordinary legal norms that accommodate powers that would have been considered impossible prior to the crisis. It is often overlooked that Carl Schmitt’s critique of liberal legalism in the state of exception was embedded in an account of modern science and technology.24 Schmitt is one of the major critics of the modern state as a machine, a fate he attributed to liberalism and its inexorable quest for neutrality that reduced politics to a technical instrument drained of meaningful substance. This process—​liberalism’s original sin—​began as early as the scientific revolution of the sixteenth and seventeenth centuries and culminated in the early twentieth century in what Schmitt termed the age of “technicity,” where instrumental rationality replaced religion, theology, or law as the central domain where truth (or the meaning of neutrality) is constituted.25 Incubated by liberalism itself, the reign of technicity—​or instrumental rationality—​ and the corresponding perfection of technical means of social control and military power create unprecedented risks and dangers to which liberalism, in Schmitt’s view, had no real response. According to Schmitt, what was required was an authoritarian figure embodying a strong political vision to master the technological apparatus—​ including new means of mass persuasion such as cinema and radio—​to unify the people behind a sovereign decision to raise the state above civil society and, thus, make it possible to enshrine meaningful boundaries to the political. “In the exception,” Schmitt wagered, “the power of real life breaks through the crust of a mechanism caught in repetition.”26 The disastrous flaw in Schmitt’s solution was, of course, that he believed that Hitler represented such a figure. Likewise, Schmitt’s bleak assessment of instrumental rationality drowning out moral values and collapsing the distinction between state and society—​which was shared by Schmitt’s conservative allies such as Max Weber and Martin

Introduction  5 Heidegger as well as radical thinkers such as Walter Benjamin, the Frankfurt School, and Hannah Arendt—​did not come to pass (with the exception, perhaps, of the Third Reich itself). Yet the mutually reinforcing relationship between new technological developments and states of emergency continues to throw into relief Schmitt’s challenge that liberal democracies may eventually exhaust their ability to absorb rapid technological transformations.

Authoritarian and populist temptations A state of exception, resulting from political and economic emergencies, is the ideal condition for the rise of populism, as the interwar period testifies to. Hence, it should not come as a surprise that the turmoil generated by the recent financial and migration crises led to increased support for the populist and authoritarian Right. What populist parties have been able to do is to upset traditional left–​right dichotomies by channeling exclusivist ideas on issues such as immigration into the political mainstream. Their impact, however, remains uneven, due to their varied ideological appeal in different national settings, the resilience of mainstream parties, and the obstacles generated by non-​proportional electoral systems. Populist leaders may profess loyalty to democracy and claim to represent the “real people,” but they usually want to bypass representational institutional mechanisms, including parliamentary procedures, and to weaken the division of powers. Given their authoritarian disposition, the core question remains, as political theorist Nadia Urbinati has stressed, whether they can be “trusted” or whether they see liberal democracy as a means to monopolize power. The close association of the far-​right with populism—​which has distinct left-​wing historical trajectories of its own—​is another complicating factor. Cas Mudde and Cristóbal Rovira Kaltwasser’s projection of populism as a “thin ideology”27 affiliated with a “host ideology,” which can be situated either on the Left or Right, suggests an organized, if fleeting, response to diverse political conditions. As a democratizing force, populism defends the principle of popular sovereignty with the aim of empowering groups that do not feel represented by the political establishment. On the other hand, Mudde and Kaltwasser stress that populism can also lead to authoritarian aberrations and undermine liberal democracy because of its rejection of pluralism, including minority rights. Such a bland definition, however, runs the risk of stripping the concept of any historical dimensions or genealogies.28 In addition, since left-​wing and right-​wing forms of populism are often antithetical, their conflation leaves out crucial ideological distinctions. The radical Left’s critique of social inequalities and of the identification of liberalism with democracy is certainly based on anti-​elitist discourses.29 But while the far-​right’s criticism of elites in the name of the people can, in part, be seen as a reaction to anti-​democratic technocracy or a consensus-​driven representative democracy, it has arguably more to do with anti-​politics based on ethno-​nationalism and cultural

6  Valur Ingimundarson and Sveinn M. Jóhannesson conservatism. For this reason, some scholars, such as Jacques Rancière, are reluctant to use the populist label.30 To him, the moralistic denunciation of populism in all its formations boils down to an elitist attempt to downplay popular democratic expressions. Given the widespread use of the term, it is futile to discard it. Yet the lack of definitional rigor is a constant reminder of the need to take into account not only the ambivalent history of populism as a political category, but also how it has been practiced in the past and present. Various remedies have been put forward to ease the tension between populist and liberal outlooks, such as increased mass public participation or improved democratic decision-​making procedures. They have not, however, managed to get the broad support needed for revitalizing democracy in an age of authoritarian tendencies and transformative economic and technological change. They also raise questions about how anti-​liberal forces have been accommodated within the liberal order and how their ideological agendas have influenced the political mainstream. By constantly naming their enemies—​ whether “foreigners,” “immigrants,” or “globalists”—​ populists have been able to keep their political programs vague. In the 1920s and 1930s, corporatism was their preferred way to coordinate the economy by institutionalizing cooperation between government, labor unions, and employer associations. After World War II, Peronists in Argentina—​to take an example—​cast their struggle in terms of opposition to an imperialistic foreign-​backed oligarchy. In contrast, today’s authoritarian and populist leaders are generally not advocating a system whereby the nation is hierarchically organized into a corporatist state based on the idea of the “third way.” This difference poses the problem of how to classify the contemporary authoritarian and populist Right as a political formation:  (a) whether to adopt a broad definition by including nationalist, authoritarian, and/​ or populist elements—​ranging from leaders in power, such as Turkish President Recep Tayyip Erdoğan, Brazil’s Jair Bolsonaro, Russian President Vladimir Putin, U.S. President Donald Trump, Indian Prime Minister Narendra Modi, or Viktor Orbán in Hungary, to opposition populist party leaders, such as Marine Le Pen (France), Geert Wilders (Netherlands), or Jimmie Åkesson (Sweden); (b) whether to make a distinction between leaders working within authoritarian systems and those within liberal democracies; or (c) whether to put conservative nationalists such as Polish strongman Jarosław Aleksander Kaczyński in the same populist category as Radical Right party leaders such as Matteo Salvini in Italy. What partly explains the reason for the inability of scholars to agree on a definition of populism is that they approach the subject from different perspectives:  either in “ideational” terms—​ as a discourse, a strategy, an ideology, or a worldview—​or in terms of a political practice, historical roots, social classes, political alliances, or functions as organized formations within electoral systems. Yet irrespective of how the populist phenomenon is defined,

Introduction  7 one thing is clear: its manifestations and effects need to be explored within the context of liberal democratic politics and how it affects the exercise of executive power.

States of exception and the politics of technology Inspired by Carl Schmitt and Giorgio Agamben, recent scholarship on states of exception has been marked by efforts to elucidate the tensions between sovereignty and legality that arise in times of emergency. The chapters in this volume offer various perspectives for conceptualizing the nature of emergency powers and their evolving relationship to the political-​juridical order. They raise questions as to what extent contemporary forms of emergency governance should be understood as wholly new or exceptional, or embedded in a longer history of international power politics, republican theories of constitutional dictatorship, imperial legal regimes, racial forms of exclusion, and routine state disciplinary practices. Moreover, a more critical and nuanced picture of the changing interconnections between technology and public power in exceptional circumstances is needed, which takes into account underlying ideas, social forces, institutional arrangements, and historical dynamics. In his contribution, Hans Köchler argues that by linking sovereignty to the power to decide on the “state of exception,” Carl Schmitt reverses the sequence of the origins and exercise of sovereignty in democratic governments and, thus, confounds the categories of legislative and executive power. For in a democratic constitution, the state of exception is not the paradigmatic expression of sovereignty or an end in itself, but has the sole purpose of preserving the very order of the constitution. While the “exceptional approach” has been expanded, after 9/​11 in particular, emergency measures should not entail a suspension of the rule of law. Emergency powers are only a secondary and instrumental aspect of sovereignty as an authority to create laws on the basis of the decisions of the sovereign people. Köchler claims that this represents the core difference between democratic decisionism and Schmitt’s absolutist version of it. By ignoring the separation of powers and the rule of law, Schmitt frees a sovereign decision from any dependence on norms, making it absolute. Köchler’s argument is that Schmitt’s absolutist notion of sovereignty has been most influential in the international domain, specifically in the institutional framework regulating relations between sovereign states: the United Nations Charter. The decision-​making rules of the UN Security Council allow that body’s permanent members—​as a group as well as individually—​to operate under a kind of permanent state of exception. Because of the provisions of Chapter VII of the Charter, the Council’s authority is virtually absolute. The Council’s decisions are binding upon all member states, and without the possibility of judicial review. Thus,

8  Valur Ingimundarson and Sveinn M. Jóhannesson to Köchler, the UN Security Council’s permanent members are the Schmittian ruler par excellence. Sveinn M.  Jóhannesson is concerned with historicizing the problem of “the state of exception” by reconstructing an alternative paradigm of republican dictatorship in the works of James Harrington. What distinguished Harrington’s theory of constitutional dictatorship was the insistence that republics—​ not monarchies—​ most effectively guaranteed security in the face of reoccurring emergencies. Moving beyond Machiavelli and the model of the Roman dictatorship, Harrington’s account of the Dictatorship of Oceana was a novel response to Jean Bodin, Thomas Hobbes, and other seventeenth-​century critics who claimed that republics’ habitual recourse to a dictator revealed the fallacy at the core of the commitment to the rule of law. Creatively mixing elements from Venetian and Hebrew republicanism with the Roman model, Harrington replaced Hobbes’s absolutist idea of unity of legislative and executive powers in a single person with a republican unity concept of “right and might” to show how constitutional states could flourish without arbitrary forms. By resisting the creation of an autonomous or uncontrolled power at the apex of the hierarchy of the state, the Oceanic commonwealth, in contrast to Hobbes’s Leviathan, effectively foreclosed the possibility that exceptional powers would be used to subvert the constitutional order itself. Harrington’s eighteenth-​ century disciples, Andrew Fletcher, Adam Ferguson, and, most notably, James Madison, explained how early modern technological developments had completely altered the terms on which constitutional government operated. By dismantling the Harringtonian identity of law and force that had made effective constitutional government possible, the modern state’s integration of new technologies, disciplinary practices, and forms of expertise constituted the historical conditions of possibility for the “zone of indistinction” that characterizes the modern state of exception. Jóhannesson suggests that the contradictions between law and power exposed in times of acute crises are less an inherent quality of law than historically contingent on the emergence of a specific constellation of technological and political forces—​what Michel Foucault aptly termed “technopolitics.” Shifting to questions of empire and race, Alexandra S.  Moore explores the U.S.  invocation of emergency and exceptionality in the War on Terror by focusing on two aspects. Referring to Derek Gregory’s and Agamben’s writings, she discusses the slide between an extraordinary attack and the exception of law and the temporalities and ideologies used to sustain emergency claims and their deployment for different ends. Moore argues that reading the War on Terror, and more particularly the role of the Guantánamo Bay detention center, in terms of exception both elides the role of law in prosecuting the war and masks a long history of legalized abuse conducted in concert with imperialism and domestic racism. Situating Guantánamo Bay within this longer juridico-​political history of imperial violence—​constitutive

Introduction  9 of, rather than an exception to, norms in international humanitarian law—​ Moore offers a rejoinder to Agamben’s account of bare or disposable life abandoned by law. Turning to the writings of former Guantánamo detainees Mansoor Adayfi and Mohamedou Ould Slahi, Moore shows how multifaceted identities take shape that would be foreclosed by the category of bare life, in addition to highlighting the precarity of life in the aftermath of imprisonment at Guantánamo. The detainees’ writings document a capacity to witness and respond to those around them that both founds their own subject positions and informs that of those they document. It suggests a complex socio-​political life that is more situated in social, historical, and material contexts than the concept of “bare life” permits. Like Moore, Jennifer N.  Ross highlights the overlap of exceptional measures in an exploration of the emergency response to Hurricane Katrina in New Orleans in 2005. Ross argues that the natural disaster should be viewed as a crucial event in the domestication of the post-​9/​11 state of exception whereby counterterror tactics have become a fundamental feature of U.S.  domestic and international policy. Thus, state and federal authorities increasingly framed a natural disaster—​and an ensuing humanitarian crisis—​ in terms of a domestic insurgency, drawing sharp parallels between the devastation of the Gulf region and the wars in Afghanistan and Iraq. In addition to adopting rhetorical strategies unique to the War on Terror, the U.S. government, news media, and paramilitary actors transposed some of the war’s most controversial tactics. In a case of what Hannah Arendt termed a “boomerang effect”—​the process whereby technologies and practices devised on the periphery in imperial war eventually return to infiltrate and deform domestic government in the metropole—​Ross details how the authorities used private security contractors (PSCs) such as Blackwater USA and a detention facility against black “looters” and Arab and Muslim “terrorists” to reassert control over the largely black population of hurricane survivors. She concludes that the post-​storm militarization of New Orleans reveals a crucial juncture at which counterterror discourse and policy overlapped with mass incarceration and American racism to normalize the state of exception and reassert white supremacy. It also helped normalize counterterror tactics not only as a viable option for other post-​disaster responses but also as a means to manage popular dissent. Focusing on the role of biometrics and bio-​surveillance in the management of the EU refugee influx after 2011, Peter Hitchcock takes up the challenge of addressing the question of technological development and states of emergency. Hitchcock shows how the development of biometrics feeds off the demands of necessity characterizing exceptional situations. To EU emergency managers, the migration problem seems to compel the accumulation of biometric data to identify and classify migrants, and, thus, gauge their circulation across member states. Yet, Hitchcock argues, biometrics also functions to differentiate measure around how a “crisis” is defined, characterized, and overcome. Fingerprinting, signature data, and other “life measures” do not

10  Valur Ingimundarson and Sveinn M. Jóhannesson merely help police the crisis but their “logic of exception” tends to undermine solidarity and collaboration within the European bloc and reintroduces sovereignty claims by member states. Furthermore, the European Union relies on biometrics to underpin a strategy of externalization aimed at the spatial displacement of the refugee crisis. Extending databases and surveillance infrastructures far beyond its physical borders enables EU authorities to turn back possible asylum cases before they reach Europe. Instead of facing the complexities of compliance with UN-​ mandated refugee conventions demanding legal protections by the state, migration can be contained elsewhere. As Hitchcock explains, however, the strategy of externalization betrays the limits of both biometrics and sovereignty.

Democracy and liberalism: authoritarian, populist, and corporatist challenges The relationship between democracy and populism is a contested one. Contemporary populists claim to support democracy and participate in parliamentary politics in their quest for power, while distrusting, at the same time, representative institutions as part of their anti-elitist rhetoric. This ambivalence—​which is rooted in the rejection of pluralism as the basis for democratic legitimacy—​raises questions about populism’s ultimate political ends and its association with authoritarianism and forms of exceptional rule. It is also linked to the tension between direct mass participation and representative deliberative venues in liberal democratic systems:  whether more direct public participation in decision-​making is needed or whether democracy should be strengthened by increasing the quality of deliberation. Finally, the surge in populist authoritarianism has led to a re-​examination of its ties with corporatism. To be sure, conservative strongmen or populist leaders in the present have not embraced corporatism as a way of reorganizing the economy as the interwar fascist and authoritarian regimes did. Yet the idea of the “third way” and centralized command is still relevant within the context of modern capitalist economies. In her contribution, Nadia Urbinati argues that populists are trying to capitalize on what constitutional democracy sought to neutralize following the collapse of mass dictatorships after World War II: the resistance to institutional checks on the exercise of majority power and political intermediation, such as organized political parties. She stresses that this does not mean that populism can be divorced from democratic forms of politics; on the contrary, populism frames itself as an attempt to construct a collective subject through voluntary popular consent and to challenge a political order in the name of the people’s interests. Her point is that populists seek to transform representative democracy through unrestrained use of the means and procedures it offers. In opposition, populist leaders attack mainstream parties on the Right and Left. Once in power, they reconfirm their identification with “the people” by waging a battle against the entrenched establishment and by claiming

Introduction  11 that they represent the “right people” and that they deserve to rule for their own good. According to this reading, the representative construction of populism is rhetorical and independent of social classes and traditional ideologies or the Left–​Right divide. Yet since populism is not simply a style that can be adapted to different projects or be indifferently progressive and regressive, it has to transform the basic principles and rules of democracy itself to be successful. While populism in power does not challenge the practice of elections, Urbinati argues that it transforms voting into the celebration of the majority and its leader as part of a new elitist governing strategy. That means that populism is open to authoritarian temptations, even if it is not in and of itself an authoritarian regime. Thus, populism in power is doomed either to be unbalanced—​as in a permanent campaign—​or to become a new regime. And for this reason, it “cannot be trusted,” for it leads politics and the state toward outcomes that are not subject to democratic control. Instead of viewing populism as a rhetoric or a strategy, Valur Ingimundarson focuses on it as a political practice and a right-​wing tradition, with the purpose of historicizing it in terms of ideology, party formation, and alliances. While the contemporary populist Right differs from the interwar Radical Right by its formal acceptance of parliamentary democracy and its refrain from violence as a political strategy, he argues that it should not be defined exclusively as an ahistorical late-​ comer. Apart from rejecting traditional right-​wing/​left-​wing classifications, highlighting threats posed by national and cultural decline, and projecting themselves as saviors against corrupt elites, contemporary right-​wing populist parties share important functional links with historical fascist movements and other radical nationalist parties through their behavior within parliamentary democracy and their willingness to forge alliances with conservative elites. This also points to the need, Ingimundarson claims, to move away from the scholarly tendency to attach the populist label to all right-​wing formations or to make no distinctions between authoritarian or semi-​authoritarian leaders and populist leaders. He suggests that it is more fruitful to analyze populism by paying more attention to what unites and differentiates far-​right formations from conservative ones. Within the context of contemporary politics, he points to a central paradox: the success of the populist Right has allowed it to act as both a systemic destabilizer and stabilizer. On the one hand, it is a disrupting anti-​elitist force, seeking to reverse mainstream policies on immigration, welfare, multiculturalism, and supranationalism. On the other, it is an accommodating political vehicle that is prepared to forge alliances with traditional elites. Thus, just as in the past, right-​wing populism does not only pose a challenge to the functioning of representative democracy. A  key question is whether conservatives—​as political competitors—​will succumb to the temptation to parrot and normalize populist ideology and practices to stay in power. Jón Ólafsson also deals with the contemporary challenges posed to democracy, suggesting a way—​through what he terms a critical conception of public

12  Valur Ingimundarson and Sveinn M. Jóhannesson engagement—​to alleviate the tensions between representative and populist forms of democracy and between deliberation and public participation. He argues that the suppression of such political agency is a fundamental deviation from liberal democracy. Illiberal governments pursue democratic policies while, at the same time, undermining the epistemic infrastructure needed for full democratic inclusion. For Ólafsson, the best argument for preserving competitive electoral democracy can be found in the apparent democratic paradox where elected representatives are simultaneously under the demand to act for the sake of the common good and to do what the public at each moment happens (or seems) to want. He believes that the consensus-​orientation of deliberative democracy and the problem-​solving attitude of epistemic democratic theory put too much emphasis on reforming methods of policy-​and decision-​making. What they miss is the importance of control over the executive and the process of enforcing public decisions. He points out that there is no guarantee that a clearly expressed public will—​as reflected, for example, in the outcomes of referendums or civic assemblies—​will be translated into policy because it can still be contested or be subjected to different interpretations. For this reason, much more pressure—​or “infiltration”—​of government or public administration is needed to enforce policies. It would also help solve another problem: the lack of trust in democratic politics. While electoral competition is, in part, about controlling the decision-​ making process, Ólafsson claims that real competition is for executive power. This has led to the widespread belief that competitive electoral politics—​or lack of direct participation in decision-​making—​are to blame for declining trust in representative government. Ólafsson thinks, however, that one should rather point the finger at the institutions of the executive and the professionalized public administration. Hence, broad “political agency,” or general civic awareness of the ways and processes needed to reach political goals, is more important for the success of liberal and deliberative democracy than mass participation or, for that matter, mass deliberation. In their contribution, Juan Vicente Sola and Gylfi Zoega shift the conversation to questions of economic crises and performance by focusing on corporatism as an alternative societal mode of organizing designed to control the unpredictable forces of capitalism. As they explain, corporatism represented a radical departure from the system of liberal constitutionalism founded on the separation of powers and checks and balances to guarantee limited government. Instead, it called for unbounded power in pursuit of the “will of the people.” Corporatists proposed centralized direction and planning, giving the state great control over the contours of economic life. It is widely accepted that, in the early twentieth century, declarations of emergency were extended from war to economic crises to empower executives with exceptional powers. Zoega and Sola, however, argue that where leaders succumbed to the corporatist view that the conditions of modern industry called for institutionalizing such measures on a permanent basis, it was followed with detrimental

Introduction  13 effects for the economy as a whole. It entailed the enforced coordination of the economy by mandating cooperation between government, labor unions, and employer associations, deciding prices and distributing income. While the pure corporatist systems in fascist Italy or authoritarian Spain and Portugal failed in the twentieth century, corporatist elements persist in modern-​day economies across the globe. Sola and Zoega argue that, in the long term, crisis government tends to make economies prone to subsequent bouts of crises. Although it is invoked in the name of efficiency, such centralization of information and control has long-​term detrimental effects. Thus, what impedes economic performance and even triggers economic crises are factors such as the absence of checks and balances, including independent legislatures, as well as the blurring of lines between public supervisory agencies and private corporations. All the contributions in this volume highlight renewed scholarly interest in legal, political, and social conditions of liberal and democratic failure.31 While some of the topics addressed here have, separately, generated a great deal of critical scholarship, they have largely remained in isolation. This book offers a synoptic perspective, aiming to capture the plurality of forces challenging and undermining liberal democracies in the twenty-​first century.32 The multi-​layered response to the global COVID-​19 crisis gives additional weight and urgency to such an approach. Many governments received, as noted, emergency powers or declared states of emergency to derogate from constitutional procedure and international human rights obligations and, in some cases, to postpone elections. Political leaders, with authoritarian aspirations, were granted new powers to rule by decree and to override existing laws. In addition, surveillance technologies were used on an unprecedented scale to enforce lockdowns, with liberal democracies taking measures to monitor citizens by tracking their movement through phone data and novel forms of bio-​surveillance, and authoritarian states, including Russia and China, by adopting additional state-​of-​the-​art methods such as facial recognition cameras.33 The resilience of democracy as a political system should not be downplayed. There has been no want of gloomy accounts of its retreat, backsliding, or all-​out death.34 Yet, as is made clear here, three developments in particular can be singled out as posing a threat to democratic values and norms: the increased use of emergency powers, the spread of authoritarian and populist politics, and the revolution in information and communications technology. This book is about these crosscutting manifestations of the contemporary liberal disorder.

Notes 1 On the state of exception, see Giorgio Agamben, Homo Sacer:  Sovereign Power and Bare Life, trans. Daniel Heller-​Roazen (Stanford, CA:  Stanford University Press, 1998); Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago

14  Valur Ingimundarson and Sveinn M. Jóhannesson







and London:  University of Chicago Press, 2005); Bruno Gullì,”The Sovereign Exception:  Notes on Schmitt’s Word that Sovereign Is He Who Decides on the Exception,” Glossator 1 (2009): 23–​30; Michael McConkey, “Anarchy, Sovereignty, and the State of Exception,” Independent Review 17, no. 3 (2013): 415–​428; Mattilda Arvidsson, Leila Brännström, and Panu Minkkinen, eds., The Contemporary Relevance of Carl Schmitt. Law, Politics, Theology (Abingdon: Routledge, 2016); William E. Scheuerman, The End of Law: Carl Schmitt in the 21st Century, 2nd ed. (London: Rowman and Littlefield International, 2020); David Dyzenhaus, ed., Law as Politics: Carl Schmitt’s Critique of Liberalism (Durham, NC: Duke University Press, 2016); Stephen Legg, Spatiality, Sovereignty and Carl Schmitt: Geographies of the Nomos (Abingdon:  Routledge, 2011); Jens Mehring and Oliver Simons, eds., The Oxford Handbook of Carl Schmitt (Oxford:  Oxford University Press, 2016); Chantal Mouffe, ed., The Challenge of Carl Schmitt (London: Verso, 1999); Louiza Odysseos and Fabio Petito, eds., The International Political Thought of Carl Schmitt. Terror, Liberal War and the Crisis of Global Order (Abingdon: Routledge, 2007); Gopal Balakrishnan, The Enemy. An Intellectual Portrait of Carl Schmitt (London: Verso, 2000); Montserrat Herrero López, The Political Discourse of Carl Schmitt. A  Mystic of Order (Lanham, MD:  Rowman & Littlefield, 2015); Ewa Atanassow and Ira Katznelson, “State of Exception in the Anglo-​American Liberal Tradition,” Zeitschrift für Politikwissenschaft 28 (2018):  385–​ 394; Jan-​ Werner Müller, A Dangerous Mind:  Carl Schmitt in Post-​War European Thought (New Haven, CT: Yale University Press, 2003); John P. McCormick, “Fear, Technology, and the State: Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany,” Political Theory 22, no. 4 (1994): 619–​652; Alysia E. Garrison, “Agamben’s Grammar of the Secret Under the Sign of the Law,” Law Critique 20 (2009): 281–​297. 2 Agamben, State of Exception. 3 Adam Tooze, “Shockwave:  Adam Tooze on the Pandemic’s Consequences for the World,” London Review of Books 42, no.  8 (April 16, 2020), accessed May 18, 2020, www.lrb.co.uk/​the-​paper/​v42/​n08/​adam-​tooze/​shockwave. See also Tooze, Crashed: How a Decade of Financial Crisis Changed the World (New York: Penguin, 2018). 4 As the political theorist Wolfgang Streeck has argued, central banks have become “the ideal dictator or the only agent capable of taking decisive action when it comes to crisis management.” See Streeck, How Will Capitalism End? Essays on a Failing System (London and New  York:  Verso, 2016), 236. Katharina Pistor, The Code of Capital:  How the Law Creates Wealth and Inequality (Princeton, NJ: Princeton University Press, 2019). 5 On populism, democracy, and authoritarianism, see Cas Mudde, ed., The Populist Radical Right: A Reader (London and New York: Routledge, 2017); Cas Mudde and Cristóbal Rovira Kaltwasser, Populism (Oxford: Oxford University Press, 2017); Federico Finchelstein, From Fascism to Populism in History (Oakland: University of California Press, 2017); Kirk A. Hawkins, Ryan E. Carlin, Levente Littvay, and Cristóbal Rovira Kaltwasser, eds., The Ideational Approach to Populism: Concept, Theory, and Analysis (London and New  York:  Routledge, 2019); Jan-​Werner Müller, What is Populism? (Philadelphia: University of Pennsylvania, 2016); Nadia Urbinati, Me the People:  How Populism Transforms Democracy (Cambridge, MA: Harvard University Press, 2019); Nadia Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Cambridge, MA:  Harvard University Press,

Introduction  15 2014); Benjamin Moffitt, The Global Rise of Populism:  Performance, Style, and Representation (Stanford, CA:  Stanford University Press, 2016); John B.  Judis, The Populist Explosion:  How the Great Recession Transformed American and European Politics (New York: Columbia Global Report, 2016); Chantal Mouffe, For a Left Populism (London and New  York:  Verso, 2018); Roger Eatwell and Matthew Goodwin, National Populism:  The Revolt against Liberal Democracy (London: Pelican, 2018); Ernesto Laclau, On Populist Reason (London:  Verso Books, 2005); Michael Freeden, Ideologies and Political Theory:  A Conceptual Approach (Oxford:  Clarendon Press, 1996); Michael Freeden, “Ideology and Political Theory,” Journal of Political Ideologies 11 (2006): 3–​22; Norberto Bobbio, The Future of Democracy, trans. Roger Griffin (Cambridge:  Polity Press, 1987); Margaret Canovan, The People (Cambridge: Polity Press, 2005); Bernard Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997). 6 Müller, What is Populism?, 6, 10–​11, 76. 7 See Yannis Stavrakakis and Anton Jäger, “Accomplishments and Limitations of the ‘New’ Mainstream in Contemporary Populism Studies,” European Journal of Social Studies 21, no. 4 (2018): 547–​565. 8 Clinton Rossiter, Constitutional Dictatorship:  Crisis Government in the Modern Democracies (New Brunswick, NJ: Transaction, 2002). 9 On scientific and technological developments, see Philip Howard, Lie Machines: How to Save Democracy from Troll Armies, Deceitful Robots, Junk News Operations, and Political Operatives (New Haven, CT: Yale University Press, 2020); Martin Moore, Democracy Hacked: Political Turmoil and Information Warfare in the Digital Age (London: Oneworld Publications, 2018); David Runciman, How Democracy Ends (London:  Profile Books, 2018); Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (New  York:  Profile Books, 2019); Frank Pasquale, The Black Box Society:  The Secret Algorithms that Control Money and Information (Cambridge, MA: Harvard University Press, 2015); Ian D.R. Shaw, Predator Empire: Drone Warfare and Full Spectrum Dominance (Minneapolis: University of Minnesota Press, 2016). 10 Zuboff, The Age of Surveillance Capitalism. 11 Thomas Rid, Active Measures: The Secret History of Disinformation and Political Warfare (London: MacMillan, 2020); Howard, Lie Machines. 12 See, for example, William E.  Scheuerman, “Survey Article:  Emergency Powers and the Rule of Law after 9/​11,” Journal of Political Philosophy 14 (2006): 61–​84. 13 Carl Schmitt, Political Theology:  Four Chapters on the Concept of Sovereignty trans. George D. Schwab (Chicago: University of Chicago Press, 2005), 5, 7, 11. 14 Agamben, State of Exception; Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2019). See also John Reynolds, Empire, Emergency and International Law (Cambridge: Cambridge University Press, 2017); John Fabian Witt, “Anglo-​American Empire and the Crisis of the Legal Frame (Will the Real British Empire Please Stand Up?),” Harvard Law Review (2007): 754; and Lauren Benton, “Constitutions and Empires,” Law and Social Inquiry 31 (2006): 177. 15 Oren Gross and Fiunnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006); Oren Gross, “Extra-​Legality and the Ethic of Political Responsibility,” in Emergencies and the Limits of Legality, ed. Victor V. Ramraj (Cambridge: Cambridge University

16  Valur Ingimundarson and Sveinn M. Jóhannesson Press, 2008), 60–​94; Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton, NJ: Princeton University Press, 2009); Mark Tushnet, “The Political Constitution of Emergency Powers: Some Conceptual Issues,” in Emergencies and the Limits of Legality, ed. Victor V. Ramraj (Cambridge: Cambridge University Press, 2008), 145–​155; Nomi Lazar, States of Emergency in Liberal Democracies (New  York:  Cambridge University Press, 2009); Karin Loevy, Emergencies in Public Law: The Legal Politics of Containment (Cambridge: Cambridge University Press, 2018). For an account stressing the applicability of law in times of crises, see David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006). Incorporating a variety of these views is Gary Gerstle and Joel Isaac, eds., States of Exception in American History (Chicago: University of Chicago Press, 2020). 16 Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2010). 17 Aaron Sibarium, “Donald Trump was Never a Carl Schmitt Acolyte,” National Review, March 20, 2020, accessed April 23, 2020, www.nationalreview.com/​2020/​ 03/​coronavirus-​trump-​administration-​response-​real-​danger-​of-​his-​presidency-​ fecklessness/​; Joseph Owen, “States of Emergency, Metaphors of Virus, and COVID-​19,” Verso Books, blogs, March 31, 2020, accessed May 25, 2020, www. versobooks.com/​blogs/​4636-​states-​of-​emergency-​metaphors-​of-​virus-​and-​covid-​ 19; Alan Green, “States should Declare a State of Emergency using Article 15 ECHR to Confront the Coronavirus Pandemic,” Strassbourg Observers Blog, April 1, 2020, accessed April 23, 2020, https://​strasbourgobservers.com/​about/​; Quinta Jurecic and Benjamin Wittes, “Being an Actual Authoritarian is Too Much Work for Trump:  The President Doesn’t Like Constraints on his Power, but Doesn’t Exactly Like Using his Power Either,” The Atlantic, April 14, 2020, accessed April 23, 2020, www.theatlantic.com/​ideas/​archive/​2020/​04/​lazy-​ authoritarian/​609937/​; “COVID-​19 and the State of Exception,” The Barrister, April 3, 2020, accessed April 23, 2020, www.barristermagazine.com/​covid-​19-​ and-​the-​state-​of-​exception/​. 18 See Agamben, State of Exception, 40. 19 “Giorgio Agamben, ‘L’épidémie montre clairement que l’état d’exception est devenu la condition normale,’ ” Le Monde, March 24, 2020, accessed April 23, 2020, www.lemonde.fr/​idees/​article/​2020/​03/​24/​giorgio-​agamben-​l-​epidemie-​montre-​ clairement-​que-​l-​etat-​d-​exception-​est-​devenu-​la-​condition-​normale_​6034245_ 3232.html. 20 See Giorgio Agamben, “The Invention of an Endemic,” Journal of European Psychology, February 26, 2020, accessed April 23, 2020, www.journal-​psychoanalysis. eu/​coronavirus-​and-​philosophers/​; Giorgio Agamben, “Clarifications,” Journal of European Psychology, March 17, 2020, accessed April 23, 2020, www.journal-​ psychoanalysis.eu/​coronavirus-​and-​philosophers/​; Giorgio Agamben, “The Enemy is Not Outside, It Is Within Us,” March 17, 2020, accessed May 25, 2020, https://​ bookhaven.stanford.edu/​2020/​03/​giorgio-​agamben-​on-​coronavirus-​the-​enemy-​is-​ not-​outside-​it-​is-​within-​us//​; see also Jean-​Luc Nancy, “Viral Exception,” Journal of European Psychology, February 27, 2020, accessed, April 23, 2020, www.journal-​ psychoanalysis.eu/​coronavirus-​and-​philosophers. 21 Slavoj Žižek, “Monitor and Punish? Yes, Please!” Philosophical Salon, March 16, 2020, accessed April 23, 2020, https://​thephilosophicalsalon.com/​monitor-​and-​ punish-​yes-​please/​.

Introduction  17 22 “Giorgio Agamben, ‘L’épidémie montre clairement que l’état d’exception est devenu la condition normale.’ ” 23 This was the view of Fritz Tobias, who was one of the first to reject the theory that the Nazis were responsible for the Reichstag fire on February 27, 1933. About the controversy, see Fritz Tobias, Der Reichtstagsbrand. Legend und Wirklichkeit (Rastatt:  Grote, 1962); Hans Mommsen, “Der Reichstagsbrand und seine politischen Folgen,” Vierteljahrshefte für Zeitgeschichte 12, no.  4 (1964):  365–​ 413; Benjamin Carter Hett, Burning the Reichstag: An Investigation into the Third Reich’s Enduring Mystery (New  York:  Oxford University Press, 2014); Richard Evans, “The Conspiracists,” London Review of Books 36, no.  9 (May 8, 2014), accessed April 23, 2020, www.lrb.co.uk/​the-​paper/​v36/​n09/​richard-​j.-​evans/​theconspiracists. 24 The major exception is John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge and New York: Cambridge University Press, 1997). 25 “The evidence of the widespread belief in technology is based only on the proposition that the absolute and ultimate neutral ground has been found in technology, since apparently there is nothing more neutral.” Carl Schmitt, “The Age of Neutralizations and Depolitizations (1929),” trans. John P. McCormick, Telos 96 (1993): 119–​130. See also Schmitt, The Leviathan in the State Theory of Thomas Hobbes:  Meaning and Failure of a Political Symbol, trans. George Schwab and E.  Hilfstein, with an introduction by George Schwab (Chicago:  University of Chicago Press, 2008), 42. 26 Schmitt, Political Theology, 35. 27 See Ben Stanley, “The Thin Ideology of Populism,” Journal of Political Ideologies 13, no. 1 (2008): 95–​110; Cas Mudde, “The Populist Zeitgeist,” Government and Opposition 39 (2004): 542–​563; Laclau, On Populist Reason; Freeden, Ideologies and Political Theory; Freeden, “Ideology and Political Theory.” 28 See Finchelstein, From Fascism to Populism in History, 130. 29 Ibid., 134. 30 Jacques Rancière, Hatred of Democracy (London: Verso, 2006), 79–​80. 31 See for example Mark A.  Graber, Sanford Levinson, and Mark V.  Tushnet, Constitutional Democracy in Crisis? (New York: Oxford University Press, 2018) and Tom Ginsburg and Aziz Z.  Huq, How to Save a Constitutional Democracy (Chicago: University of Chicago Press, 2018). 32 See for example, Ginsburg and Huq, How to Save a Constitutional Democracy and Nadia Urbinati in this volume. 33 Dave Gerhsgorn, “We Mapped How the Coronavirus is Driving New Surveillance Programs Around the Word. At Least 30 Countries are Ramping Up Surveillance to Combat the Coronavirus,” One Zero, April 9, 2020, accessed April 23, 2020, https://​onezero.medium.com/​the-​pandemic-​is-​a-​trojan-​horse-​for-​surveillance-​ programs-​around-​the-​world-​887fa6f12ec9; Nicola Habersetzer, “Moscow Silently Expands Surveillance of Citizens: COVID-​19 Provides Excuse to Extend New Monitoring Technology,” Human Rights Watch, March 25, 2020, accessed April 23, 2020, www.hrw.org/​news/​2020/​03/​25/​moscow-​silently-​expands-​ surveillance-​citizens; Paul Mozur and Aaron Krolik, “A Surveillance Net Blankets China’s Cities, Giving Police Vast Powers,” New York Times, December 19, 2019, accessed May 25, 2010, www.nytimes.com/​2019/​12/​17/​technology/​china-​ surveillance.html.

18  Valur Ingimundarson and Sveinn M. Jóhannesson 34 Examples include Steven Levitsky and Daniel Ziblatt, How Democracies Die: What History Reveals About Our Future (New  York:  Penguin Books, 2019); Edward Luce, The Retreat of Western Liberalism (New York: Little, Brown, 2017); Pankaj Mishra, The Age of Anger: A History of the Present (New York: Farrar, Straus and Giroux, 2017); Adrian Pabst, The Demons of Liberal Democracy (Cambridge:  Polity Press, 2019). For a critique from the Right, see Patrick J. Deneen, Why Liberalism Failed (New Haven, CT: Yale University Press, 2018); and Jason Brennan, Against Democracy (Princeton, NJ:  Princeton University Press, 2017).

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20  Valur Ingimundarson and Sveinn M. Jóhannesson Habersetzer, Nicola. “Moscow Silently Expands Surveillance of Citizens:  COVID-​ 19 Provides Excuse to Extend New Monitoring Technology.” Human Rights Watch, March 25, 2020. Accessed April 23, 2020. www.hrw.org/​news/​2020/​03/​25/​ moscow-​silently-​expands-​surveillance-​citizens. Hawkins, Kirk A., Ryan E. Carlin, Levente Littvay, and Cristóbal Rovira Kaltwasser, eds. The Ideational Approach to Populism: Concept, Theory, and Analysis. London and New York: Routledge, 2019. Hett, Benjamin Carter. Burning the Reichstag: An Investigation into the Third Reich’s Enduring Mystery. New York: Oxford University Press, 2014. Hommels, Anique, Jessica Mesman, and Wiebe E. Bijker, eds. Vulnerability in Technological Cultures:  New Directions in Research and Governance. Cambridge, MA: MIT Press, 2006. Honig, Bonnie. Emergency Politics:  Paradox, Law, Democracy. Princeton, NJ: Princeton University Press, 2009. Howard, Philip. Lie Machines: How to Save Democracy from Troll Armies, Deceitful Robots, Junk News Operations, and Political Operatives. New Haven, CT:  Yale University Press, 2020. Hussain, Nasser. The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor: University of Michigan Press, 2019. Ignazi, Piero. The Extreme Right Parties in Western Europe. Oxford and New York: Oxford University Press, 2003. Judis, John B. The Populist Explosion: How the Great Recession Transformed American and European Politics. New York: Columbia Global Report, 2016. Jurecic, Quinta, and Benjamin Wittes. “Being an Actual Authoritarian is Too Much Work for Trump: The President Doesn’t Like Constraints on his Power, but Doesn’t Exactly Like Using his Power Either.” The Atlantic, April 14, 2020. Accessed April 23, 2020. www.theatlantic.com/​ideas/​archive/​2020/​04/​lazy-​authoritarian/​609937. Laclau, Ernesto. On Populist Reason. London: Verso Books, 2005. Lazar, Nomi. States of Emergency in Liberal Democracies. New  York:  Cambridge University Press, 2009. Legg, Stephen. Spatiality, Sovereignty and Carl Schmitt:  Geographies of the Nomos. Abingdon: Routledge, 2011. Levitsky, Steven, and Daniel Ziblatt. How Democracies Die:  What History Reveals About Our Future. New York: Penguin Books, 2019. Loevy, Karin. Emergencies in Public Law:  The Legal Politics of Containment. Cambridge: Cambridge University Press, 2018. López, Montserrat Herrero. The Political Discourse of Carl Schmitt. A  Mystic of Order. Lanham, MD: Rowman & Littlefield, 2015. Luce, Edward. The Retreat of Western Liberalism. New York: Little, Brown, 2017. Manin, Bernard. “The Emergency Paradigm and the New Terrorism:  What If the End of Terrorism was Not in Sight?” In Les usages de la separation des pouvoirs, edited by Sandrine Baume and Biancamaria Fontana, 136–​171. Paris:  Michel Houdiard, 2008. Manin, Bernard. The Principles of Representative Government. Cambridge: Cambridge University Press, 1997. Mayer, Jane. The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals. New York: Knopf, 2009. McCormick, John P. Carl Schmitt’s Critique of Liberalism:  Against Politics as Technology. Cambridge and New York: Cambridge University Press, 1997.

Introduction  21 McCormick, John P. “Fear, Technology, and the State:  Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany.” Political Theory 22, no. 4 (1994): 619–​652. McConkey, Michael. “Anarchy, Sovereignty, and the State of Exception.” Independent Review 17, no. 3 (Winter 2013): 415–​428. Mehring, Jens, and Oliver Simons, eds. The Oxford Handbook of Carl Schmitt. Oxford: Oxford University Press, 2016. Mishra, Pankaj. The Age of Anger: A History of the Present. New York: Farrar, Straus and Giroux, 2017. Moffitt, Benjamin. The Global Rise of Populism: Performance, Style, and Representation. Stanford, CA: Stanford University Press, 2016. Mommsen, Hans. “Der Reichstagsbrand und seine politischen Folgen.” Vierteljahrshefte für Zeitgeschichte 12, no. 4 (1964): 365–​413. Moore, Martin. Democracy Hacked: Political Turmoil and Information Warfare in the Digital Age. London: Oneworld Publications, 2018. Mouffe, Chantal, ed. The Challenge of Carl Schmitt. London: Verso, 1999. Mouffe, Chantal. For a Left Populism. London and New York: Verso, 2018. Mozur, Paul, and Aaron Krolik. “A Surveillance Net Blankets China’s Cities, Giving Police Vast Powers.” New York Times, December 19, 2019. Accessed May 25, 2020. www.nytimes.com/​2019/​12/​17/​technology/​china-​surveillance.html. Mudde, Cas, ed. The Populist Radical Right:  A Reader. London and New  York: Routledge, 2017. Mudde, Cas. “The Populist Zeitgeist.” Government and Opposition 39 (2004): 542–​563. Mudde, Cas. “The Problem with Populism.” Guardian, February 17, 2015. Accessed February 8, 2020. www.theguardian.com/​commentisfree/​2015/​feb/​17/​ problem-​populism-​syriza-​podemos-​dark-​side-​europe. Mudde, Cas, and Cristóbal Rovira Kaltwasser. Populism. Oxford: Oxford University Press, 2017. Müller, Jan-​Werner. A Dangerous Mind: Carl Schmitt in Post-​War European Thought. New Haven, CT: Yale University Press, 2003. Müller, Jan-​Werner. “How Populists Will Leverage the Corona Virus Pandemic.” World Politics Review, April 7, 2020. Accessed 24 April 2020. www.worldpoliticsreview. com/​articles/​28663/​how-​populists-​will-​leverage-​the-​coronavirus-​pandemic. Müller, Jan-​Werner. What is Populism? Philadelphia:  University of Pennsylvania, 2016. Nancy, Jean-​ Luc. “Viral Exception.” Journal of European Psychology, February 27, 2020. Accessed April 23, 2020. www.journal-​psychoanalysis.eu/​coronavirusand-​philosophers. Odysseos, Louiza, and Fabio Petito, eds. The International Political Thought of Carl Schmitt. Terror, Liberal War and the Crisis of Global Order. Abingdon: Routledge, 2007. Owen, Joseph. “States of Emergency, Metaphors of Virus, and COVID-​19.” Verso Books, blogs, March 31, 2020. Accessed May 25, 2020. www.versobooks.com/​ blogs/​4636-​states-​of-​emergency-​metaphors-​of-​virus-​and-​covid-​19. Pabst, Adrian. The Demons of Liberal Democracy. Cambridge: Polity Press, 2019. Pasquale, Frank. The Black Box Society: The Secret Algorithms that Control Money and Information. Cambridge, MA: Harvard University Press, 2015. Philipps, Tom, and Caio Barretto Briso. “Bolsonaro’s Anti-​ Science Response to Coronavirus Appals Brazil’s Governors.” Guardian, March 27, 2020. Accessed

22  Valur Ingimundarson and Sveinn M. Jóhannesson April 24, 2020. www.theguardian.com/​world/​2020/​mar/​27/​jair-​bolsonaro-corona virus-​brazil-​governors-​appalled. Pistor, Katharina. The Code of Capital: How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press, 2019. Posner, Eric A., and Adrian Vermeule. The Executive Unbound: After the Madisonian Republic. New York: Oxford University Press, 2010. Rancière, Jacques. Hatred of Democracy. London: Verso, 2006. Reynolds, John. Empire, Emergency and International Law. Cambridge:  Cambridge University Press, 2017. Rid, Thomas. Active Measures:  The Secret History of Disinformation and Political Warfare. London: MacMillan, 2020. Rossiter, Clinton. Constitutional Dictatorship:  Crisis Government in the Modern Democracies. New Brunswick, NJ: Transaction, 2002. Runciman, David. How Democracy Ends. London: Profile Books, 2018. Scheuerman, William E. The End of Law: Carl Schmitt in the 21st Century, 2nd ed. London: Rowman and Littlefield International, 2020. Scheuerman, William E. “Survey Article:  Emergency Powers and the Rule of Law after 9/​11.” Journal of Political Philosophy 14 (2006): 61–​84. Schmitt, Carl. “The Age of Neutralizations and Depolitizations (1929).” Translated by John McCormick. Telos 96 (1993): 119–​130. Schmitt, Carl. The Leviathan in the State Theory of Thomas Hobbes:  Meaning and Failure of a Political Symbol. Translated by George Schwab and E. Hilfstein, with an introduction by George Schwab. Chicago: University of Chicago Press, 2008. Schmitt, Carl. Political Theology:  Four Chapters on the Concept of Sovereignty translated by George D. Schwab. Chicago: University of Chicago Press, 1985/​2005. Shaw, Ian D.R. Predator Empire:  Drone Warfare and Full Spectrum Dominance. Minneapolis: University of Minnesota Press, 2016. Sibarium, Aaron. “Donald Trump was Never a Carl Schmitt Acolyte.” National Review, March 20, 2020. Accessed April 23, 2020. www.nationalreview.com/​2020/​ 03/​coronavirus-​trump-​administration-​response-​real-​danger-​of-​his-​presidency-​ fecklessness/​. Stanley, Ben. “The Thin Ideology of Populism.” Journal of Political Ideologies 13, no. 1 (2008): 95–​110. Stavrakakis, Yannis, and Anton Jäger. “Accomplishments and Limitations of the ‘New’ Mainstream in Contemporary Populism Studies.” European Journal of Social Studies 21, no. 4 (2018): 547–​565. Streeck, Wolfgang. How Will Capitalism End? Essays on a Failing System. London and New York: Verso, 2016. Tobias, Fritz. Der Reichtstagsbrand. Legend und Wirklichkeit. Rastatt: Grote, 1962. Tooze, Adam. Crashed:  How a Decade of Financial Crisis Changed the World. New York: Penguin, 2018. Tooze, Adam. “Shockwave:  Adam Tooze on the Pandemic’s Consequences for the World.” London Review of Books 42, no. 8 (April 16, 2020). Accessed May 18, 2020. www.lrb.co.uk/​the-​paper/​v42/​n08/​adam-​tooze/​shockwave. “Trump Asks if Sunlight Can Kill Viruses. ‘Not as a Treatment,’ Birx Says.” New York Times, April 24, 2020. Accessed April 24, 2020. www.nytimes.com/​2020/​04/​24/​ health/​sunlight-​coronavirus-​trump.html?action=click&module=Top%20Stories& pgtype=Homepage.

Introduction  23 Tushnet, Mark. “The Political Constitution of Emergency Powers: Some Conceptual Issues.” In Emergencies and the Limits of Legality, edited by Victor V. Ramraj, 145–​ 155. Cambridge: Cambridge University Press, 2008. Urbinati, Nadia. Democracy Disfigured: Opinion, Truth, and the People. Cambridge, MA: Harvard University Press, 2014. Urbinati, Nadia. Me the People: How Populism Transforms Democracy. Cambridge, MA: Harvard University Press, 2019. Witt, John Fabian. “Anglo-​American Empire and the Crisis of the Legal Frame (Will the Real British Empire Please Stand Up?).” Harvard Law Review (2007): 754–​796. Žižek, Slavoj. “Monitor and Punish? Yes, Please!” Philosophical Salon, March 16, 2020. Accessed April 23, 2020. https://​thephilosophicalsalon.com/​monitor-​and-​ punish-​yes-​please/​. Zuboff, Shoshana. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Profile Books, 2019.

Part I

Liberal democracy and the use of exceptional powers

1  Carl Schmitt’s conception of sovereignty, the UN Security Council, and the instrumentalization of the “state of exception” Hans Köchler For Carl Schmitt, the essence of sovereignty lies in the power to decide on the state of exception.1 In his conception, the state’s legal order only makes sense if there exists a kind of primordial order, that is, a real, not merely normative, system that reflects the stability of state and society.2 The “sovereign” is the supreme arbiter who alone decides whether there exists such an actual, “normal,” order or not.3 In his definition of sovereignty, Schmitt further explains his rather dogmatic, decisionist (in a certain sense, existentialist)4 approach, arguing that the “state of exception” (“Ausnahmezustand”) is most suitable for the legal definition of sovereignty, simply because “a decision on exception is … decision par excellence.”5 The existentialist pathos becomes more than obvious in how he characterizes the exception:  “First and foremost, a philosophy of concrete life must not shy away from the exception.”6 Because Schmitt confuses the legislative and executive aspects of power, his decisionist-​existentialist notion of sovereignty is not compatible with an understanding based on the autonomy of the citizen (for example, in the Kantian sense) as a source of legitimacy of the legal order.7 Identifying rule on the basis of a temporary exception from the law (an element of executive power) as a primordial aspect of sovereign power (which is paradigmatically expressed in the authority of the people as legislator) is a typical case of what German philosophy describes as “Kategorienvermengung” (“confusion of categories”). Also, as Andrew Norris has pointed out, Schmitt’s conception is “excessively metaphysical.”8 In modern (secular) state theory, shaped by the Enlightenment, the constitution must be derived from the will of the citizens as founders of the res publica. Ideally, the popular will is expressed in the form of a referendum. Accordingly, in any democratic constitution, the state of exception is not the paradigmatic expression of sovereignty. Unlike in a framework of totalitarian (absolutist) power, emergency rule is not an end in itself, but has the sole purpose to preserve the very order of the constitution, established by the community of citizens. Any temporary suspension of laws must be seen as subordinated to that goal and integrated into a system of checks and balances, with the legislative and judicial branches being able to review and revise the acts of executive power.

28  Hans Köchler This was also the case, after World War I, with the constitution of the German Weimar Republic (Weimarer Reichsverfassung). Schmitt referred specifically to this constitution in his effort to demonstrate the nature of sovereignty.9 The Reichsverfassung ultimately subordinates the emergency powers of the President to the authority of Parliament. However, this is exactly what Schmitt rejects, almost abhors, in terms of his absolutist understanding of sovereignty:  that the German Parliament, the Reichstag, is empowered to repeal any emergency measures taken by the President.10 For Schmitt, the provision indicates that the Weimar Constitution seeks to avoid as much as possible addressing the crucial question of sovereignty. In his assessment, any arrangement based on a separation of powers follows such an evasive approach.11 In a democratic constitution, sovereignty is, as noted, not, per se, about the authority to declare an exception (emergency) or suspend laws or the constitution in its entirety. Emergency powers are only a secondary (instrumental) aspect of sovereignty as an authority to create law by virtue of decisions of the free—​sovereign—​people, which is its primary aspect.12 Therein lies the difference between democratic decisionism and Schmitt’s absolutist version of it. Not unlike legal positivism,13 Schmitt links legal norms to acts of will: “As in any order, the legal order too is founded on a decision, not a norm.”14 Thus, Schmitt’s decisionism—​or voluntarism—​has certainly something in common with Hans Kelsen’s theory of the “validity of norms” (Rechtsgeltung). As Tomas Berkmanas argues, both approaches can be interpreted as “essentially identical models of exclusionary-​inclusion of life into the domain of law.”15 Schmitt, however, obscures or mystifies the act of decision in a totalitarian sense. Neglecting all considerations of a separation of powers and the rule of law, he states: “The decision frees itself from any dependence on norms and becomes absolute in the true sense.”16 This approach is also evident in Schmitt’s affirmative reference to Thomas Hobbes’s dictum that “it is authority, not truth, which makes the law.”17 Schmitt identifies Hobbes as a classic representative of the decisionist approach toward sovereignty.18 Yet the quasi-​absolute power to decide on the state of exception contemplated by Schmitt must not be confused with the state’s “monopoly of violence” as defined by Max Weber.19 The latter relates to the enforcement of norms within a state’s constitutional order in general. It is the differentia specifica between a state of anarchy and the rule of law. In the context of “democratic decisionism,” the declaration of a state of exception by the holders of executive power is, as outlined here, only an act to protect the legal order, not to abrogate it. In that regard, Schmitt’s emphasis on the exercise of a “derived” competence as paradigmatic act of sovereignty is misleading. He makes repeated efforts to bend the interpretation of the concept in favor of his position. Commenting on Jean Bodin’s definition,20 he describes “the authority to annul the law in force”21 as the very essence of sovereignty, instead of recognizing the merely auxiliary role of such authority. In the Schmittian logic, sovereignty as a “borderline concept” (Grenzbegriff)22 in

Schmitt, the UNSC, and the “state of exception”  29 the strict sense,23 means to be above the law.24 For Schmitt, as Jef Huysmans puts it, “the norm does not define the exception but the exception defines the norm.”25 This means that under the state of exception, “the law suspends itself.”26 It is no coincidence that this interpretation—​since it was first developed in the years after World War I27—​has been exploited by those who have sought an ideological justification for authoritarian or totalitarian rule as an end in itself. As Zoe A.  Thomson stated bluntly in a recent analysis of global developments, “emergency has become the new normal.”28 Under the pretext of what is described by the Latin dictum, “necessitas non habet legem” (“necessity has no law”), Schmitt’s conception—​in different contexts and under different circumstances—​has served to legitimize, in the name of national sovereignty, emergency rule up to the present day. A case in point is how Eric Posner and Adrian Vermeule have applied Schmitt’s theory in their analysis of contemporary politics—​or better its instrumentalization.29 Their research paper entitled “Demystifying Schmitt” can be seen as justifying an ever more expansive interpretation of executive power in the United States in the period after September 11, 2001,30 a development characterized, in a commentary on the Trump Administration, as an “intentional turn toward an aggressive view of executive power.”31 In his treatment of the emergency policies of the United States—​in particular, the 2001 United States Patriot Act of October 24, 200132 and President George W.  Bush’s military order of November 13, 200133—​Giorgio Agamben sees Schmitt’s doctrine at work, implying that the state of exception has become a “paradigm of government.”34 To him, these measures reveal the “biopolitical significance of the state of exception as the original structure in which law encompasses living beings by means of its own suspension.”35 In the case of President Bush’s military order, however, the constitutional separation of powers was at work. In its decision of June 29, 2006, the United States Supreme Court ruled that international legal obligations36 also apply to emergency decrees of the President, thus rejecting a Schmittian interpretation of executive power under the rule of exception.37 Since 9/​11, the “exceptional” approach has also been pertinent—​under the Trump Administration in particular38—​in an excessive use of unilateral sanctions by the United States, and their frequent extraterritorial application on the basis of presidential declarations of a national emergency.39 The International Emergency Economic Powers Act (IEEPA) of 1977 grants the President wide discretionary powers to initiate and perpetuate such punitive, essentially hostile, measures against sovereign states,40 notwithstanding his obligation to consult with and report to Congress.41 Because of the lack of a separation of powers, any emergency regime of the executive branch, which does not include specific provisions for its termination, depending on a determination by the legislative branch, is incompatible with the rule of law. Furthermore, an indefinite perpetuation of emergency rule is against the very notion of such a rule, which is meant to be temporary.

30  Hans Köchler Thus, similar to Germany’s Weimar Verfassung, exception clauses in most contemporary constitutions are in sharp contrast to Schmitt’s “absolutist” conception that systemically confuses the executive (secondary) and legislative (primary) aspect of sovereignty. The strict distinction between these two dimensions is evident, for example, in the “emergency decree authority” (Notverordnungsrecht) of Article 18, Paragraph 3 of the Constitution of the Republic of Austria. The provision strictly integrates emergency authority into the constitutional separation of powers, obliging the President to lift such measures without delay if so requested by Parliament.42 At first glance, a democratic-​ constitutional approach, which is itself decisionist, does not contradict Schmitt’s evaluation of emergency powers as far as the publicly stated goal is concerned—​namely, the preservation of the sovereign state. The difference lies in the constitutional procedures (in terms of the separation of powers) and, especially, in the doctrinal implications, that is, Schmitt’s unequivocal subordination of law to power. For him, the essence of rule (Herrschaft) under the state of exception is “that the state continues to exist while the law steps back.”43 In Schmitt’s doctrine, the continued existence of the state is “undoubtedly superior to the validity of the law [the legal norm].”44 In a certain respect, this also seems to have been the rationale of the International Court of Justice’s Advisory Opinion on the question of the legality of the use of nuclear arms. Responding to a question put before it by the General Assembly of the United Nations, the Court stated that it “is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-​defense, in which its very survival would be at stake.”45 Apart from this apocalyptic challenge, where contemporary international law is somewhat ambiguous, Schmitt’s interpretation of sovereignty is—​in addition to its unconstitutionality in a modern democratic context—​also incompatible with international obligations of states. A  case in point is the public emergency clauses of the International Covenant on Civil and Political Rights,46 which strictly limit emergency powers. According to Article 4, Paragraph 5, no derogation is possible from norms of jus cogens such as the right to life, the prohibition of torture and slavery, as well as freedom of thought, conscience, and religion.47 The same applies to other international legal instruments, such as the 1949 Geneva Conventions.48 Schmitt’s definition of sovereignty as absolute power, modeled on the exception (from the very law sovereignty is meant to found),49 fits more into a doctrine of political realism than into a theory of law. In Schmitt’s analysis, sovereignty is defined by the power “to suspend the existing [legal] order in its totality.”50

The UN Security Council’s P5 as Schmittian ruler It is exactly in the domain of international affairs—​namely, in relations between sovereign states—​where Schmitt’s absolutist notion of sovereignty,

Schmitt, the UNSC, and the “state of exception”  31 embodied in the unrestrained power to declare a state of exception, holds sway. Surprising to many, and almost counterintuitively, it is the Charter of the United Nations that appears as a blueprint for the application of this realist doctrine. The definition of the powers of the Security Council under Chapter VII of the UN Charter strikingly resembles Schmitt’s description of sovereign authority under a state of exception. According to Article 25 of the Charter, the Security Council possesses the authority to take coercive measures that are legally binding upon all member states—​irrespective of considerations of national sovereignty. Furthermore, the Council’s decisions under Chapter VII can be enforced by any measures, including the use of armed force (Articles 41 and 42). In the specific provisions of Chapter VII,51 there are structural similarities to how Schmitt describes the state of exception and the emergency powers related to it. According to his decisionist doctrine, to decide on the state of exception is the epitome of sovereign rule. It is the “sovereign” who decides (1) on the existence of a national emergency and (2) on the measures to be taken to deal with it.52 Similarly, three centuries earlier, Thomas Hobbes commented in Leviathan53 on this double dimension of sovereign power: The Soveraigne Is Judge Of What Is Necessary For The Peace And Defence Of His Subjects/​And because the End of this Institution is the Peace and Defence of them all; and whosoever has the right to the End, has the right to the Means.54 Furthermore, (3) according to Schmitt, the “sovereign,” under the state of exception may effectively “obliterate” (vernichten) existing legal norms.55 The sovereign authority under (1) resembles the Security Council’s powers under Article 39 of the Charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.” A situation thus defined constitutes the emergency of the international order. That order’s very existence, based on non-​interference in the internal affairs56 and the prohibition of the threat or use of force between states,57 is at stake under these circumstances. The Council alone defines the criteria for such a determination, which is final. There is no separation of powers of any kind within the UN system. The General Assembly does not possess legislative authority, and the International Court of Justice is not competent to decide on resolutions of the Council adopted under Chapter VII.58 Thus, a determination under Article 39 may eventually trigger the imposition of coercive measures, including the use of force, against which no appeal is possible. The Council’s definitional authority under Article 39 perfectly mirrors Schmitt’s description of sovereignty: “that sovereignty, and therefore the state as such, consists … in the power to determine the concept of public order and security, as well as to determine the existence of a threat to this order, et cetera.”59 The power of the sovereign, as defined by Schmitt as well as Hobbes, to decide on specific measures to be taken in an emergency declared by the

32  Hans Köchler sovereign (point [2]‌above) also resembles the authority given to the Security Council under Articles 41 and 42 of the Charter. As it is put in Article 41: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions.” The subsequent sentence of this Article lists comprehensive and partial economic sanctions as such measures. That it begins with the phrase “These may include” indicates a taxative, not exhaustive, enumeration of measures, which allows the Council almost total arbitrariness in its coercive action, that is, in the choice of means. Indeed, the Council interpreted this authority rather liberally in the years after the end of the Cold War, when even the establishment of criminal courts was considered as “coercive measure” in the meaning of Article 41.60 The risk of arbitrariness in the choice of means is even more obvious—​and more consequential—​in the authority given the Council under Article 42, namely to resort to the use of armed force should it consider that measures under Article 41 “would be inadequate or have proved to be inadequate.” According to Article 42, the use of such measures is at the sole discretion of the Council. It “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” Sovereign authority under (3) resembles an “exceptionalist” power of the Security Council under Article 2(7) of the UN Charter. The norm prohibiting interference into the internal affairs, an essential aspect of sovereign equality of states, is effectively not valid when the Council exercises its coercive powers.61 As implied in the wording of the Charter, the Council, in that regard, stands effectively above the law. As already indicated, for all binding resolutions under Chapter VII of the UN Charter, once adopted, the power of the Council cannot be challenged by member states of the United Nations or courts, whether domestic or international. This state of affairs, in terms of the legal statute of the world organization, exactly matches Schmitt’s description of emergency powers: “Here, preconditions [for the invocation of a state of exception] as well as content [scope] of authority are necessarily undetermined [that is, without limits].”62 Furthermore, because of the veto provision of Article 27(3) of the UN Charter, decisions on coercive measures cannot be revoked without the consent of the Council’s five permanent members (P5).63 The consequences of this statutory monstrosity can be severe as has been evident in the perpetuation of comprehensive sanctions against Iraq for over a decade. No appeal to human rights or legal challenge (invoking the jus cogens nature of fundamental rights) was able to convince the permanent member that had regime change in mind, that is the United States, to agree to the lifting of these measures, which amounted to the most severe and brutal form of collective punishment ever enacted in the name of the United Nations.64 The voting privilege of the P5, marginalizing the votes of the majority of the Council’s members, has made the absence of statutory checks and balances in the Charter even more consequential.

Schmitt, the UNSC, and the “state of exception”  33 In a decision on a dispute involving two permanent members of the Security Council, the International Court of Justice frankly admitted that it considers itself only competent to review resolutions of the Council under Chapter VI of the Charter65 (which have the character of mere recommendations). Thus, for the sake of world peace—​this, after all, was the rationale for granting the Council such expansive powers—​Chapter VII resolutions, including those that violate basic human rights of an entire people,66 stand effectively above the law. Because of those statutory provisions, the Security Council is not, as suggested in Article 24 of the Charter,67 the agent of all member states in matters of collective security. It is, de facto, a tool of power politics in the hands of its permanent members. Those five states (1)  can under no circumstances be the target of any enforcement action against their own transgressions of the law (because of the veto), and (2) their leaders are, in most cases, effectively immune from any international investigation or prosecution for the commission of international crimes, in particular the crime of aggression. The latter is (a) due to the power of those countries to block, by virtue of their veto, any referral of a situation in which international crimes may have been committed to the International Criminal Court (ICC),68 and (b)  due to the Security Council’s privilege—​under the Statute of the ICC—​to determine the existence of a case of aggression on the basis of Chapter VII.69 In regard to (a), the leaders and officials of the permanent member states that are not States Parties of the International Criminal Court70 enjoy virtual impunity from any international prosecution for “international crimes” (war crimes, crimes against humanity, and genocide). In regard to (b), concerning the crime of aggression, the leaders, officials, and personnel of all P5 countries can act with full impunity, simply because of the Security Council’s definitional privilege. The special provisions of the UN and ICC statutes combined have, indeed, become a blueprint for a Machiavellian exercise of power by some of the most powerful—​and most legally privileged—​member states of the United Nations. As regards the crime of aggression, the countries referred to under (2)(b) above and their leaders are effectively above the law and may, each individually, proceed with their agenda of power politics, including the use of force, at their own discretion. This state of affairs mirrors Schmitt’s description of the quasi-​absolute powers of “the sovereign.” In Schmittian terms, the sovereign (ruler) “stands outside of the normally valid legal order while, at the same time, being part of that very order.”71 The sovereign creates the law, but is not bound by it. Using a play on words (in German), Schmitt again asserts, “daß sie [die staatliche Autorität], um Recht zu schaffen, nicht Recht zu haben braucht” (“that [the authority of the state] does not need to act lawfully in order to create law”) (emphasis by the author).72 This is also how John Foster Dulles, who helped draft the Preamble of the UN Charter and who later became U.S. Secretary of State in the Eisenhower Administration, described the role of the Security Council shortly after the world organization’s foundation:  “The Security Council is not a body that

34  Hans Köchler merely enforces agreed law. It is a law unto itself.”73 The same logic of power politics is also visible in a statement of one of his predecessors as Secretary of State, Cordell Hull, who commented on the veto privilege in the following way: “our government would not remain there [in the United Nations] a day without retaining the veto power.”74 Thus, Schmitt’s description of sovereign authority is what sovereignty means for the most powerful member states of the United Nations, the Council’s permanent members. By virtue of their coercive resolutions, they not merely execute existing (international) law (in terms of the prohibition of the use of force). They are also in a position to operate outside the scope of a basic norm of international law, namely “sovereign equality” (as is evident in the wording of Article 2[7]‌of the Charter).75 Finally, they are able to legislate, that is, to create norms that are binding upon all.76 In the years following the Cold War, the Security Council evolved even further beyond its “traditional” role as supreme executive organ of the United Nations. This has particularly been the case with the Council’s counter-​ terrorism measures since 2001, especially resolution 1373 (2001),77 which established a so-​ called “Counter-​ Terrorism Committee” with vast discretionary powers in terms of policies binding upon all member states.78 In the UN General Assembly, the Council’s assumption—​or rather arrogation—​of the role of “emergency legislator” was heralded as a new era in international relations. The Permanent Representative of Costa Rica solemnly stated: “for the first time in history, the Security Council enacted legislation for the rest of the international community.”79 The Council’s self-​arrogated role as legislator without legislative mandate again became evident in resolution 1540 (2004) related to the non-​proliferation of weapons of mass destruction.80 Again, the then President of the Council, Ambassador Günter Pleuger of Germany, described the resolution as “the first major step towards having the Security Council legislate for the rest of the United Nations’ membership.”81 That the Security Council—​in the vacuum resulting from the collapse of the global power balance after the dissolution of the Soviet Union—​was able to abuse its authority under Chapter VII of the Charter and assume de facto legislative and even judicial82 powers was, to a large extent, facilitated by the virtual immunity of the Council’s permanent members due to their voting privilege. In the absence of checks and balances within the Charter, the “unilateral” expansion of the Council’s mandate by way of Chapter VII resolutions, and its intrusion into the legislative and judicial domains, could not be challenged in any procedural (legal) way. Accordingly, as long as a consensus exists among the P5, those countries may use the Council almost exclusively in the pursuit of their agenda due to their wide margin of discretion in terms of determinations under Article 39, as well as the choice of means of enforcement. This is the lesson of the post-​Cold War period. However, the consensus has come under strain recently in the course of the crises in Libya and Syria, a development that has made Chapter VII resolutions almost unachievable for the time being.83

Schmitt, the UNSC, and the “state of exception”  35 It goes without saying that a genuine power balance among the P5—​ elements of which existed among the victors of World War II, when the organization was founded—​can mitigate the “Schmittian power” of the permanent members as a group, simply because there will be fewer Chapter VII resolutions.84 However, as history has demonstrated, this effectively means paralysis of the organization in its core function:  the management of collective security. The voting provisions of Article 27(3) of the UN Charter put the supposedly legally equal non-​permanent members in an unenviable dilemma: either being subjected to the arbitrary power of the P5 (when those countries concur) or being faced with the unrestrained projection of power of each of these states individually, with the sole “protection” being the right to individual or collective self-​defense (under Article 51 of the Charter).

Conclusion Based on his absolutist doctrine of sovereignty, Carl Schmitt’s analysis of the state of exception has caused major confusion about the relationship of power and law in a constitutional context. With its decisionist pathos, the concept challenges the very foundations of the rule of law, domestically as well as internationally. Schmitt’s “exceptionist” dogma, subordinating law to power85 and confusing the distinction between legislative and executive authority, elevates the “emergency” to the status of a general norm where, in the words of Schmitt, the “essence of state authority” is most clearly revealed.86 He puts this assertion in an eminently political context: “In the exception, the power of real life cuts through the crust of a [state] system, ossified in mechanical repetition.”87 It is no surprise that this kind of decisionist rhetoric has, at the domestic (national) level, encouraged populist and totalitarian tendencies particularly in the industrialized world—​in the interwar period of the twentieth century and, again, in the post-​9/​11 era of the twenty-​first century. What Schmitt referred to as power “in itself beyond any limits”88—​and what, for him, constitutes the essence of rule under the state of exception—​ characterizes, mutatis mutandis, the status of the permanent members of the Security Council. In terms of the Charter, they enjoy power (legal authority) beyond any limits. Only for them, deciding on the existence of a “threat to the peace, breach of the peace, or act of aggression,”89 does sovereignty exist in the genuine sense according to Schmitt’s dictum “Sovereign is who decides on the state of exception.”90 For all others, the UN Charter’s principle of “sovereign equality”91 means relative sovereignty,92 that is, a status of subordination to the “exceptional” powers of five countries specifically mentioned in the Charter.93 Whatever may be said to the contrary, the Council’s non-​ permanent (non-​ veto-​ wielding) members can only play a marginal role because their votes only count if they are “validated” by the permanent members. Realism trumps idealism. In the clothes of a commitment to “peace,” “equality,” and “international rule of law,” the United Nations Charter puts the “enforcers” of the law, in the name of the law, outside that very law. In

36  Hans Köchler tandem with the Council’s emergency powers under Chapter VII—​beyond and above judicial scrutiny—​and due to the non-​obligation of parties to a dispute to abstain from voting in all decisions on coercive measures,94 the veto privilege of the permanent members has effectively made them the sole arbiters of global peace. If there is a “Schmittian ruler” in the contemporary global order, it is the small group of the Security Council’s permanent members as embodied in their collective action under Chapter VII of the UN Charter, but also in the individual measures pursued by each of them in the implementation—​and perpetuation—​of a coercive decision once taken.

Notes 1 “Sovereign is who decides on the state of exception.” Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität, 8th ed. 2014 (Berlin: Duncker & Humblot), 13. All English translations of foreign language quotes, including those from the works of Carl Schmitt, are by the author. 2 In German: “Die Ordnung muß hergestellt sein, damit die Rechtsordnung einen Sinn hat.” Schmitt, Politische Theologie, 19. 3 In German:  “souverän ist derjenige, der definitiv darüber entscheidet, ob dieser normale Zustand wirklich herrscht” [“he is sovereign who ultimately decides whether such a normal condition actually exists”]. Schmitt, Politische Theologie, 19. 4 Cf. the early critique of Karl Löwith (alias Hugo Fiala), “Politischer Dezisionismus,” Internationale Zeitschrift für Theorie des Rechts 9 (1935): 101–​123. 5 In German:  “Die Entscheidung über die Ausnahme ist … im eminenten Sinne Entscheidung.” Schmitt, Politische Theologie, 19. 6 In German:  “Gerade eine Philosophie des konkreten Lebens darf sich vor der Ausnahme nicht zurückziehen.” Schmitt, Politische Theologie, 21. 7 For details see Köchler, “Sovereignty, Law and Democracy versus Power Politics,” in Force or Dialogue: Conflicting Paradigms of World Order. Collected Papers, ed. David Armstrong (New Delhi: Manak, 2015), 55–​72. 8 Andrew Norris, “Sovereignty, Exception, and Norm,” Journal of Law and Society 34, no. 1 (March 2007): 31. 9 Schmitt, Politische Theologie, 18. 10 German:  “Die Maßnahmen sind auf Verlangen des Reichstages außer Kraft zu setzen.” [“The [emergency] measures must be suspended if Parliament so demands.”] Article 48(3) of the Weimar Constitution (Reichsverfassung). 11 In German:  “Diese Regelung entspricht der rechtsstaatlichen Entwicklung und Praxis, welche durch eine Teilung der Zuständigkeiten und gegenseitige Kontrolle die Frage nach der Souveränität möglichst weit hinauszuschieben sucht.” [“This regulation corresponds with the legal-​constitutional development and practice according to which the division of responsibilities and mutual control [checks and balances] are used to defer the question of sovereignty as much as possible.”] Schmitt, Politische Theologie, 17f. 12 Cf. Köchler, “Sovereignty, Law and Democracy versus Power Politics,” 55ff. 13 See Hans Kelsen, Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik, ed. Matthias Jestaedt (Tübingen:  Mohr Siebeck, 2008 [1st edition 1934]).

Schmitt, the UNSC, and the “state of exception”  37 14 German:  “Auch die Rechtsordnung, wie jede Ordnung, beruht auf einer Entscheidung, nicht auf einer Norm.” Schmitt, Politische Theologie, 16. 15 Tomas Berkmanas, “Schmitt v. (?) Kelsen: The Total State of Exception Posited for the Total Regulation of Life,” Baltic Journal of Law & Politics 3, no. 2 (2010): 106. Interpreting Schmitt’s introductory reflections on sovereignty, Berkmanas assesses that “decision/​decisionism should be an integral part of the positivist theory of law,” 108. 16 In German: “Die Entscheidung macht sich frei von jeder normativen Gebundenheit und wird im eigentlichen Sinn absolut.” Schmitt, Politische Theologie, 18. 17 “Authoritas, non Veritas facit Legem.” See Thomas Hobbes, Leviathan, Sive De Materia, Forma, & Potestate Civitatis Ecclesiasticae Et Civilis, Part II (De Civitate sive Republica), ch. 26 (De Legibus Civilibus) (Amsterdam: Ioannes Blaev, 1670), 133. (Full quote, 132f: “In Civitate constituta, Legum Naturae Interpretatio non à Doctoribus & Scriptoribus Moralis Philosophiae dependet, sed ab Authoritate Civitatis. Doctrinae quidem verae esse possunt; sed Authoritas, non Veritas facit Legem.”). 18 Schmitt, Politische Theologie, Ch. II (“Souveränität als Problem der Rechtsform und der Entscheidung” [“Sovereignty as Problem concerning the Form of Law and Problem of Decision”]):  “Der klassische Vertreter des … dezisionistischen Typus ist Hobbes,” 39. 19 Max Weber, Wirtschaft und Gesellschaft:  Grundriss der verstehenden Soziologie [1921/​22], ed. Johannes Winckelmann, 5th rev. ed. (Tübingen: Mohr, 2009), §17 (“Politischer Verband, Hierokratischer Verband”). 20 “la souveraineté est la puissance absolue et perpetuelle d’une République” [“sovereignty is the absolute and perpetual power of a Republic”]: Jean Bodin. Les Six Livres de la République (Paris: Iacques du Puys, 1576. Livre I, Chapitre IX: De la souveraineté), 152. 21 In German: “Die Befugnis, das geltende Gesetz aufzuheben,” Schmitt, Politische Theologie, 16. 22 “Dem entspricht, daß seine Definition nicht anknüpfen kann an den Normalfall, sondern an einen Grenzfall.” [“To this corresponds that its definition [i.e. the definition of the concept of sovereignty] cannot be drawn on the regular case, but must be derived from the borderline case.”], Schmitt, Politische Theologie, 13. 23 Cf. Bruno Gullì, “The Sovereign Exception:  Notes on Schmitt’s Word that Sovereign Is He Who Decides on the Exception,” Glossator 1 (Fall 2009): 23. 24 Cf. Michael McConkey, “Anarchy, Sovereignty, and the State of Exception,” Independent Review 17, no. 3 (Winter 2013): 417. 25 Jef Huysmans, “International Politics of Exception:  Competing Visions of International Political Order between Law and Politics,” Alternatives:  Global, Local, Political 31, no. 2 (2006): 136. 26 Schmitt, Politische Theologie, 20:  “[der Fall] in welchem das Recht sich selber suspendiert” [“[the case] where the law suspends itself”]. (Emphasis by Schmitt). 27 The first edition of Politische Theologie appeared in 1922 (Munich:  Duncker & Humblot). 28 Zoe A. Thomson, “Fear and the Sovereign: A Debate on the State of Exception” (2017), accessed February 20, 2020, http://​hdl.handle.net/​10230/​33736. 29 Eric Posner and Adrian Vermeule, “Demystifying Schmitt,” Harvard Law School Public Law & Legal Theory Research Paper Series, Paper No. 10–​47/​Chicago Law School Public Law & Legal Theory Research Paper Series, Paper No. 333 (December 10, 2010), accessed May 25, 2020, https://​ssrn.com/​abstract=1723191.

38  Hans Köchler 30 Cf., inter alia, Jens David Ohlin, The Assault on International Law (Oxford and New York: Oxford University Press, 2015). 31 Quinta Jurecic, “Donald Trump’s State of Exception,” LAWFARE, December 14, 2016, accessed May 25, 2020, www.lawfareblog.com/​donald-​trumps-​stateexception. 32 USA Patriot Act (H.R. 3162). HR 3162 RDS, 107th Congress, 1st Session, H. R. 3162, in the Senate of the United States, October 24, 2001. 33 Presidential Military Order:  Detention, Treatment, and Trial of Certain Non-​ Citizens in the War Against Terrorism. The White House, November 13, 2001. 34 Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago and London: The University of Chicago Press, 2005). We refer here to the title of the first (introductory) chapter: “The State of Exception as a Paradigm of Government.” 35 Agamben, State of Exception, 3. 36 In the particular case:  Common Article 3 of the Third Geneva Convention (Convention [III] relative to the Treatment of Prisoners of War). Geneva, 12 August 1949). 37 Supreme Court of the United States. Hamdan v. Rumsfeld, Secretary of Defense, et  al.—​Certiorari to the United States Court of Appeals for the District of Columbia Circuit—​Argued March 28, 2006—​Decided June 29, 2006, No. 05–​184. 38 Jurecic even asks whether Donald Trump may have become the United States’ “first Schmittian President.” See Jurecic, “Donald Trump’s State of Exception.” 39 For details, see Köchler, “Sanctions and International Law,” International Organisations Research Journal 14, no. 3 (2019): 27–​47. 40 “Any authority granted to the President by section 203 may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” International Emergency Economic Powers Act. Title II of Public Law 95–​223, 91 Stat. 1626, December 28, 1977, Sec. 202[a]‌. 41 Ibid., Sec. 204. 42 For details, see Ewald Wiederin, “Das Notverordnungsrecht des Bundespräsidenten,” Beiträge zur Rechtsgeschichte Österreichs (Vienna: Verlag der Österreichischen Akademie der Wissenschaften) 8, no. 2 (2018): 385–​395. 43 In German:  “daß der Staat bestehen bleibt, während das Recht zurücktritt,” Schmitt, Politische Theologie, 18. Cf. also 18f: “Im Ausnahmefall suspendiert der Staat das Recht, kraft eines Selbsterhaltungsrechtes, wie man sagt” [“Under the state of exception, the State suspends the law, due to its right of self-​preservation, as the saying goes”]. 44 “Die Existenz des Staates bewahrt hier eine zweifellose Überlegenheit über die Geltung der Rechtsnorm.” Schmitt, Politische Theologie, 18. 45 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of July 8, 1996, Paragraph 96. 46 Adopted by United Nations General Assembly resolution 2200A (XXI) of 16 December 1966. The treaty entered into force on March 23, 1976. 47 The Covenant lists rights under Articles 6, 7, 8, 11, 15, 16, and 18 as non-​derogable. 48 The Geneva Conventions of August 12, 1949. Geneva: International Committee of the Red Cross, 1983. 49 For Schmitt, in the case of exception, the legal norm is not merely meant to be suspended, but “obliterated” (“wird im Ausnahmefall die Norm vernichtet”), Schmitt, Politische Theologie, 19. (Emphasis by the author).

Schmitt, the UNSC, and the “state of exception”  39 50 In German:  “Suspendierung der gesamten bestehenden [Rechts-​ ]Ordnung,” Schmitt, Politische Theologie, 18. 51 Entitled, “Action with respect to threats to the peace, breaches of the peace, and acts of aggression.” 52 In German:  “Er [der Souverän] entscheidet sowohl darüber, ob der extreme Notfall vorliegt, als auch darüber, was geschehen soll, um ihn zu beseitigen” [“He [the sovereign] decides whether there exists a situation of extreme emergency as well as what should be done to eliminate it.”]. Schmitt, Politische Theologie, 14. 53 Schmitt’s conception resembles Hobbes’s doctrine of power and sovereignty in basic respects. Cf. John Dunn, “The Significance of Hobbes’s Conception of Power,” Critical Review of International Social and Political Philosophy 13, nos. 2–​3 (2010): 417–​433. 54 Thomas Hobbes, Leviathan, or The Matter, Forme, & Power of a Common-​wealth Ecclesiastical and Civill (London:  Andrew Crooke, 1651), Part  2 (Of Common-​ wealth), Chapter 18 (Of the Rights of Soveraignes by Institution), Article 6, 136. 55 Schmitt, Politische Theologie, 19. See note 49 above. 56 Article 2(7) of the UN Charter. 57 Article 2(4). 58 Cf. the ruling of the International Court of Justice in the case of a Libyan application in connection with the Lockerbie air disaster. The Court asserted its competence in the case, but only because Libya had filed its application for provisional measures before the Security Council had, in this matter, adopted resolutions on the basis of Chapter VII (International Court of Justice, Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America/​United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, 27 February 1998, Paragraphs 36 and 37). 59 In German: “daß aber die Souveränität, und damit der Staat selbst, darin besteht, … definitiv zu bestimmen, was öffentliche Ordnung und Sicherheit ist, wann sie gestört wird usw.” Schmitt, Politische Theologie, 16. 60 On the legal problems of the expansive interpretation of the Council’s powers see Köchler, The Security Council as Administrator of Justice? Studies in International Relations, Vol. XXXII (Vienna: International Progress Organization, 2011). 61 Article 2(7): “but this principle [of non-​interference] shall not prejudice the application of enforcement measures under Chapter VII.” 62 In German:  “Voraussetzung wie Inhalt der Kompetenz sind hier notwendig unbegrenzt.” Schmitt, Politische Theologie, 14. 63 For the legal implications, cf. Hans Köchler, The Voting Procedure in the United Nations Security Council:  Examining a Normative Contradiction and its Consequences on International Relations. Studies in International Relations, Vol. XVII (Vienna: International Progress Organization, 1991). 64 For details see, International Progress Organization, The Iraq Crisis and the United Nations:  Power Politics vs. the International Rule of Law—​Memoranda and declarations of the International Progress Organization (1990–​ 2003). Studies in International Relations, Vol. XXVIII (Vienna: International Progress Organization, 2004). For the humanitarian consequences, see also the report by the Harvard Study Team, Unsanctioned Suffering:  A Human Rights Assessment of United Nations Sanctions on Iraq. Center for Economic and Social Rights (May 1996), accessed October 10, 2018, www1.essex.ac.uk/​armedcon/​story_​id/​ Unsanctioned%20Suffering%201996.pdf.

40  Hans Köchler 65 The chapter is entitled, “Peaceful Settlement of Disputes.” Cf. the Libya precedent: Judgement of the ICJ of 27 February 1998; see note 58 above. 66 Cf. the statement of the International Progress Organization (IPO) before the United Nations Commission on Human Rights of 13 August 1991. The IPO denounced the comprehensive sanctions regime against Iraq as an abuse of the Council’s coercive powers in a way that amounted to a systematic denial of basic human rights of an entire population:  Statement by the delegate of the International Progress Organization, Mr. Warren A.  J. Hamerman, on UN sanctions against Iraq and human rights. United Nations Commission on Human Rights, Sub-​Commission on Prevention of Discrimination and Protection of Minorities, forty-​third session, 13 August 1991, Doc. E/​CN.4/​Sub.2/​1991/​SR.10, 20 August 1991. 67 “In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security” (Paragraph 1). 68 According to Article 13(b) of the Rome Statute of the International Criminal Court. For details see Köchler, The Security Council as Administrator of Justice?, 49ff. See also Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (Vienna and New York: Springer, 2003). 69 Rome Statute of the ICC, Article 15bis, Paragraphs 7 and 8. 70 As of 2020, these are three (United States, Russian Federation, and People’s Republic of China). 71 In German: “Er steht außerhalb der normal geltenden Rechtsordnung und gehört doch zu ihr.” Schmitt, Politische Theologie, 14. 72 Schmitt, Politische Theologie, 19. 73 John Foster Dulles, War or Peace (New York: Macmillan, 1950), 194. 74 Cordell Hull, The Memoirs of Cordell Hull. Vol. 2. (New York: Macmillan, 1948), 1664. Cordell Hull was Secretary of State in the phase when the United Nations Charter was drafted. 75 Cf. note 61 above. 76 For details, see Köchler, The Security Council as Administrator of Justice?, 59ff. 77 Adopted on 28 September 2001 (“Threats to international peace and security caused by terrorist acts”). 78 Further details were set out in resolution 1624 (2005) (dealing with the prohibition of incitement to commit terrorist acts), adopted on 14 September 2005. 79 United Nations/​ General Assembly, Official Records, Fifty-​ sixth session, 25th plenary meeting, 15 October 2001, New York, Doc. A/​56/​PV.25, p. 3 (Agenda item 11: Report of the Security Council, Statement by Mr. Niehaus, Costa Rica). 80 Adopted by the Security Council at its 4956th meeting, 28 April, 2004. 81 United Nations, Press Briefing. Press Conference by Security Council President, 2 April, 2004. 82 Cf. the establishment of ad hoc courts by way of Chapter VII resolutions. For details see Köchler, The Security Council as Administrator of Justice?, 18ff. 83 One of the main factors is the mistrust among the P5 because of conflicting interpretations of Security Council resolution 1973 (2011) concerning Libya. For details see MEMORANDUM by the President of the International Progress Organization on Security Council Resolution 1973 (2011) and its Implementation by a “Coalition of the Willing” under the Leadership of the United States and the North Atlantic Treaty Organization. International Progress Organization, Doc.

Schmitt, the UNSC, and the “state of exception”  41 P/​22680c, Vienna, March 26, 2011, accessed December 20, 2019, http://​i-​p-​o.org/​ IPO-​Memorandum-​UN-​Libya-​26Mar11.pdf. 84 See Hans Köchler, “The Precarious Nature of International Law in the Absence of a Balance of Power,” in The Use of Force in International Relations: Challenges to Collective Security, 11–​ 19 (Vienna:  International Progress Organization, 2006). 85 On the problem of power and law in the international context cf., inter alia, Köchler, “The United Nations Organization and Global Power Politics:  The Antagonism between Power and Law and the Future of World Order,” Chinese Journal of International Law 5, no. 2 (2006): 323–​340. 86 In German: “Der Ausnahmezustand offenbart das Wesen der staatlichen Autorität am klarsten.” Schmitt, Politische Theologie, 19. 87 In German:  “In der Ausnahme durchbricht die Kraft des wirklichen Lebens die Kruste einer in Wiederholung erstarrten Mechanik.” Schmitt, Politische Theologie, 21. 88 In German: “grenzenlose Machtvollkommenheit.” Schmitt, Politische Theologie, 18. Schmitt gave this characterization of sovereignty in a commentary on the emergency provisions of the Weimar Constitution. Cf. notes 10–​11 above. 89 Article 39 of the UN Charter. 90 See note 1 above. 91 Article 2(1). 92 On this normative contradiction in the UN Charter cf. also Köchler, “Normative Inconsistencies in the State System with Special Emphasis on International Law,” The Global Community—​Yearbook of International Law and Jurisprudence 2016, ed. Giuliana Ziccardi Capaldo, 179f (Oxford: Oxford University Press, 2017). 93 Article 23(1). 94 On the implications of this “double” privilege of the P5 and its implications in terms of the international rule of law, cf. Köchler, The Voting Procedure in the United Nations Security Council, chapter V/​b, 29ff.

Bibliography Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Translated by Daniel Heller-​Roazen. Stanford: Stanford University Press, 1998. Agamben, Giorgio. State of Exception. Translated by Kevin Attell. Chicago and London: University of Chicago Press, 2005. Berkmanas, Tomas. “Schmitt v. (?) Kelsen: The Total State of Exception Posited for the Total Regulation of Life.” Baltic Journal of Law & Politics 3, no. 2 (2010): 98–​118. Bodin, Jean. Les Six Livres de la République. Paris: Iacques du Puys, 1576. Dulles, John Foster. War or Peace. New York: Macmillan, 1950. Dunn, John. “The Significance of Hobbes’s Conception of Power.” Critical Review of International Social and Political Philosophy 13, nos. 2–​3 (2010): 417–​433. Dyzenhaus, David. Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. Oxford and New York: Oxford University Press, 1997. [Geneva Conventions] Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. (“Third Geneva Convention”). [Geneva Conventions] The Geneva Conventions of August 12, 1949. Geneva: International Committee of the Red Cross, 1983.

42  Hans Köchler [Germany] Die Verfassung des Deutschen Reichs (Weimarer Verfassung) vom 11. August 1919 (RGBl. S. 1383). Giordanengo, Davide. The State of Exception. E-​International Relations Students. June 21, 2016. Accessed 10 October 2018. www.e-​ir.info/​2016/​06/​21/​the-​state-​of-​ exception/​. Gullì, Bruno. “The Sovereign Exception: Notes on Schmitt’s Word that Sovereign Is He Who Decides on the Exception.” Glossator 1 (Fall 2009): 23–​30. [Harvard Study Team] Unsanctioned Suffering: A Human Rights Assessment of United Nations Sanctions on Iraq. Center for Economic and Social Rights, May 1996. Accessed May 25, 2020. www1.essex.ac.uk/​armedcon/​story_​id/​Unsanctioned%20 Suffering%201996.pdf. Hobbes, Thomas. Leviathan, or The Matter, Forme, & Power of a Common-​wealth Ecclesiastical and Civill. London: Andrew Crooke, 1651. Hobbes, Thomas. Leviathan, Sive De Materia, Forma, & Potestate Civitatis Ecclesiasticae Et Civilis. Amsterdam: Ioannes Blaev, 1670. Hofmann, Hasso. “Souverän ist, wer über den Ausnahmezustand entscheidet.” Der Staat 44, no. 2 (2005): 171–​186. Hull, Cordell. The Memoirs of Cordell Hull. Vol. 2. New York: Macmillan, 1948. Huysmans, Jef. “International Politics of Exception:  Competing Visions of International Political Order between Law and Politics.” Alternatives:  Global, Local, Political 31, no. 2 (2006): 135–​165. International Court of Justice. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 226. International Court of Justice, Reports of Judgments, Advisory Opinions and Orders. Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America /​United Kingdom). Preliminary Objections. Judgment of 27 February 1998. International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976. [International Criminal Court] Rome Statute of the International Criminal Court, 17 July 1998 (entry into force 1 July 2002): United Nations /​Multilateral treaties deposited with the Secretary-​General –​Treaty I-​XVIII –​ 10. [International Progress Organization] Statement by the delegate of the International Progress Organization, Mr. Warren A.  J. Hamerman, on UN sanctions against Iraq and human rights. United Nations Commission on Human Rights, Sub-​ Commission on Prevention of Discrimination and Protection of Minorities, forty-​ third session, 13 August 1991, Doc. E/​CN.4/​Sub.2/​1991/​SR.10, 20 August 1991. [International Progress Organization] The Iraq Crisis and the United Nations: Power Politics vs. the International Rule of Law—​Memoranda and declarations of the International Progress Organization (1990–​ 2003). Studies in International Relations, Vol. XXVIII. Vienna: International Progress Organization, 2004. [International Progress Organization] MEMORANDUM by the President of the International Progress Organization on Security Council Resolution 1973 (2011) and its Implementation by a “Coalition of the Willing” under the Leadership of the United States and the North Atlantic Treaty Organization. International Progress Organization, Doc. P/​22680c, Vienna, 26 March 2011. Accessed December 20, 2019. http://​i-​p-​o.org/​IPO-​Memorandum-​UN-​Libya-​26Mar11.pdf.

Schmitt, the UNSC, and the “state of exception”  43 Jurecic, Quinta. “Donald Trump’s State of Exception.” LAWFARE, December 14, 2016. Accessed May 2, 2020. www.lawfareblog.com/​donald-​trumps-​state-​exception. Kelsen, Hans. Reine Rechtslehre. Einleitung in die rechtswissenschaftliche Problematik. Edited by Matthias Jestaedt. Tübingen: Mohr Siebeck, 2008. [1st ed. 1934]. Köchler, Hans. “The Dual Face of Sovereignty:  Contradictions of Coercion in International Law.” In The Global Community—​Yearbook of International Law and Policy 2019. Forthcoming. Köchler, Hans. Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna and New York: Springer, 2003. Köchler, Hans. “Normative Inconsistencies in the State System with Special Emphasis on International Law.” In The Global Community—​Yearbook of International Law and Jurisprudence 2016. Edited by Giuliana Ziccardi Capaldo. Oxford:  Oxford University Press, 2017, 175–​190. Köchler, Hans. “The Precarious Nature of International Law in the Absence of a Balance of Power.” In The Use of Force in International Relations: Challenges to Collective Security, 11–​19. Vienna: International Progress Organization, 2006. Köchler, Hans. “Sanctions and International Law.” International Organisations Research Journal 14, no. 3 (2019): 27–​47. Köchler, Hans. The Security Council as Administrator of Justice? Studies in International Relations, Vol. XXXII. Vienna: International Progress Organization, 2011. Köchler, Hans. “Sovereignty, Law and Democracy versus Power Politics.” Force or Dialogue:  Conflicting Paradigms of World Order—​ Collected Papers. Edited by David Armstrong, 55–​72. Delhi: Manak, 2015. Köchler, Hans. “The United Nations Organization and Global Power Politics:  The Antagonism between Power and Law and the Future of World Order.” Chinese Journal of International Law 5, no. 2 (2006): 323–​340. Köchler, Hans. The Voting Procedure in the United Nations Security Council: Examining a Normative Contradiction and its Consequences on International Relations. Studies in International Relations, Vol. XVII. Vienna: International Progress Organization, 1991. Löwith, Karl (alias Hugo Fiala). “Politischer Dezisionismus.” Internationale Zeitschrift für Theorie des Rechts 9 (1935): 101–​123. McConkey, Michael. “Anarchy, Sovereignty, and the State of Exception.” Independent Review 17, no. 3 (Winter 2013): 415–​428. McCormick, J.P. “Fear, Technology, and the State: Carl Schmitt, Leo Strauss, and the Revival of Hobbes in Weimar and National Socialist Germany.” Political Theory 22, no. 4 (1994): 619–​652. Meyer, Stephan. Juristische Geltung als Verbindlichkeit. (Jus Publicum 208.) Tübingen: Mohr Siebeck, 2011. Norris, Andrew. “Sovereignty, Exception, and Norm.” Journal of Law and Society 34, no. 1 (March 2007): 31–​45. Ohlin, Jens David. The Assault on International Law. Oxford and New York: Oxford University Press, 2015. Posner, Eric, and Adrian Vermeule. “Demystifying Schmitt.” Harvard Law School Public Law & Legal Theory Research Paper Series, Paper No. 10–​47/​Chicago Law School Public Law & Legal Theory Research Paper Series, Paper No. 333. December 10, 2010. Accessed May 20, 2020. https://​ssrn.com/​abstract=1723191. Schmitt, Carl. Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien. Berlin: Duncker & Humblot, 1963 [Reprint 1987].

44  Hans Köchler Schmitt, Carl. Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 8th ed. Berlin: Duncker & Humblot, 2004. Thomson, Zoe A. “Fear and the Sovereign:  A Debate on the State of Exception.” 2017. Accessed May 20, 2020. http://​hdl.handle.net/​10230/​33736. United Nations/​ Security Council, S/​ RES/​ 1373 (2001). Resolution 1373 (2001). Adopted by the Security Council at its 4385th meeting, on 28 September 2001. United Nations/​General Assembly, Official Records, Fifty-​sixth session, 25th plenary meeting, 15 October 2001, New York, Doc. A/​56/​PV.25. United Nations, Press Briefing. Press Conference by Security Council President, 2 April 2004. United Nations/​ Security Council, S/​ RES/​ 1540 (2004). Resolution 1540 (2004). Adopted by the Security Council at its 4956th meeting, on 28 April 2004. United Nations/​ Security Council, S/​ RES/​ 1624 (2005). Resolution 1624 (2005). Adopted by the Security Council at its 5261st meeting, on 14 September 2005. United Nations/​ Security Council, S/​ RES/​ 1973 (2011). Resolution 1973 (2011). Adopted by the Security Council at its 6498th meeting, on 17 March 2011. [United States] International Emergency Economic Powers Act. Title II of Public Law 95–​223, 91 Stat. 1626, December 28, 1977. [United States] Presidential Military Order:  Detention, Treatment, and Trial of Certain Non-​Citizens in the War Against Terrorism. The White House, November 13, 2001. [United States] Supreme Court of the United States. Hamdan v. Rumsfeld, Secretary of Defense, et al.—​Certiorari to the United States Court of Appeals for the District of Columbia Circuit—​Argued March 28, 2006—​Decided June 29, 2006, No. 05–​184. [United States] USA Patriot Act (H.R. 3162). HR 3162 RDS, 107th Congress, 1st Session, H. R. 3162, in the Senate of the United States, October 24, 2001. Weber, Max. Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie [1921/​ 22]. Ed. Johannes Winckelmann. 5th rev. ed. Tübingen: Mohr, 2009. Wiederin, Ewald. “Das Notverordnungsrecht des Bundespräsidenten.” Beiträge zur Rechtsgeschichte Österreichs. Vienna:  Verlag der Österreichischen Akademie der Wissenschaften 8, no. 2 (2018): 385–​395.

2  Right, might, and technopolitics The problem of republican dictatorship from James Harrington to James Madison Sveinn M. Jóhannesson As Shays’ Rebellion raged across Massachusetts and neighboring states in the winter of 1787, James Madison rose in a February session of the Continental Congress to confess his surprise at the specter of anarchy haunting the new United States. Once the former colonies reinvented themselves as new republics, Madison had expected that the domestic insurrections characterizing monarchical rule would be swiftly brought to an end. Republics had the comparative advantage of combining “right and might” so that a minority should never have “the force,” nor a majority “the reason,” to act against public order.1 By connecting republicanism to security and order, Madison questioned what most of his colleagues in Congress took for maxims. Even Niccolò Machiavelli—​ the most forceful champion of the republican cause—​ had conceded that republican liberty engendered tumults and frequent disruptions of public order. Few historiographical orthodoxies have been more resilient than the view that the anarchic unravelling of the Confederation in the years leading up to the Constitutional Convention in 1787 was entirely expected by observers on both sides of the Atlantic.2 Shays’ Rebellion merely made vivid to most elite Americans that their politics was caught in the classical cycle of decline and fall that had been the fate of ancients and moderns alike. In the absence of a strong central power to secure internal order, it seemed inevitable that republics would breed licentiousness and anarchy that, in turn, would pave the way for a restored monarchy or the despotic rule of a “Caesar or Cromwell.”3 What makes Madison’s suggestion conspicuous is that, to the contrary, history was failing to repeat itself. The post-​revolutionary problem of rebellion signaled not the affirmation of what Americans thought was wrong with their politics but its repudiation. The new United States was entering uncharted territory. In this chapter, I reconstruct the debates that gave rise to Madison’s puzzle. I argue that Madison contributed to a rather different way of thinking about the problem of emergency in constitutional states that owed much to James Harrington’s Commonwealth of Oceana, a lightly fictionalized account of interregnum England, published in 1656. What distinguished Harrington’s novel theory of constitutional dictatorship was the insistence that republics—​not

46  Sveinn M. Jóhannesson monarchies—​most effectively guaranteed security in the face of reoccurring emergencies. The reason, Harrington claimed, was that only in republics could right and might be effectively combined, or unified, so that there would be no law without coercive power and no coercive power not regulated by law. Moving beyond Machiavelli and the model of the Roman dictatorship, Harrington’s account of the Dictatorship of Oceana was a response to Jean Bodin, Hugo Grotius, Thomas Hobbes, and other seventeenth-​century critics who claimed that republics’ habitual recourse to a dictator holding the absolute and unlimited power of command betrayed a monarchical presence at the heart of the republican project. When it really counted, republics were monarchies too, merely imperfect ones liable to sedition and civil war. Creatively combining elements from the Roman model with elements from Venetian and Hebrew republicanism, Harrington’s account of the Dictatorship of Oceana replaced the absolutist idea of unity of legislative and executive powers in a single person with a republican unity concept of right and might to show how constitutional states could flourish without adopting monarchical forms whatsoever. Writing against the backdrop of prolonged civil war, Harrington agreed with Hobbes that imperatives of security and internal order were paramount, and that no account of law could afford to dispense with its coercive character.4 Yet Harrington resisted Hobbes’s reduction of politics to a command-​obedience relationship or enthroning an uncontrollable sovereign at the apex of government. Instead, by unifying right and might, the legal and institutional arrangements of constitutional governments effectively guaranteed security against sedition and war without creating arbitrary or prerogative power that could endanger the constitution itself. As political theorist Andreas Kalyvas recently suggests, Harrington’s account of the Dictatorship of Oceana raised the idea of constitutional dictatorship to “a new level of theoretical and institutional sophistication.”5 In the eighteenth century, David Hume was among many who regarded it as “the only valuable model” worth imitating.6 Yet, while Harrington has long been considered a highly original republican theorist, there is no scholarly account focusing on the Oceanic dictatorship.7 When referenced at all, Harrington is merely thought to have reproduced Machiavelli’s view of the Roman dictatorship, and endorsed, in extraordinary circumstances, a dichotomous suspension of constitutional order in favor of absolute or monocratic power.8 This reflects genuine gaps in our knowledge of the development of the constitutional dictatorship after Machiavelli’s momentous rediscovery of the concept.9 I argue that it is a mistake, however, to take the Roman model for the only or paradigmatic institution of dictatorship. Although it has been hitherto overlooked, Harrington discovered a rich republican tradition concerning the problem of constitutional emergency power, and introduced novel elements from the Venetian Council of Ten and the Judges of the Hebrew Republic and incorporated them with the Roman model.

Right, might, and technopolitics  47 This brings us back to Madison’s puzzle that, by the end of the eighteenth century, it seemed that the Harringtonian model no longer held up. I  show how subsequent thinkers—​ namely, Andrew Fletcher of Saltoun, Adam Ferguson, and James Madison—​sought to adapt Harrington’s constitutional model to the post-​Restoration period after 1688, imperial Britain in the eighteenth century, and the problem of rebellion in the post-​revolutionary United States. While they shared Harrington’s concern for effective rule of law, they feared that the convergence of mechanical philosophy, mathematics, and engineering—​and their integration into state-​building projects, in particular—​had completely altered the terms on which constitutional government operated. As Madison concluded, the new American republic’s problem with rebellion was not a product of an excess of liberty. Rather, harnessing new technologies and forms of expertise to the domain of war​had cut apart the Harringtonian identity of law and force that had undergirded effective constitutional government and transported modern politics into a new and precarious position. The irreducibility or disjunction of law and force that, as Italian philosopher Giorgio Agamben puts it, constitutes the “zone of indistinction,” where an executive dictator is able to redraw the boundaries between what is and is not law, is not inherent or inescapable.10 Instead, I suggest that the contradiction between law and power exposed in states of exception is a distinctly modern problem, the emergence of which was historically contingent upon a specific constellation of technological and political forces—​what Michel Foucault aptly termed “technopolitics.”11

Machiavelli’s critics James Harrington’s alternative theory of dictatorship emerged within the context of a relatively obscure debate about the meaning of constitutional dictatorship where the very nature of republican government was thought to hang in the balance. Machiavelli and his English disciples, such as John Milton and Algernon Sidney, championed republics because they were favorable to liberty, but conceded that the commitment to the rule of law came at the expense of stability and security, making them vulnerable to disorder. Their dependence on a virtuous citizenry to uphold liberty meant they were perpetually susceptible to decline and dissolution.12 In his seminal recovery of the Roman dictatorship, Machiavelli argued that republics should guarantee their security in a hostile world by temporarily setting aside the limitations and constraints of Rome’s mixed constitution and concentrate power in a single individual for the limited purpose of restoring the status quo. The dictator could not appoint himself and, according to Machiavelli’s account, was strictly prohibited from passing laws or permanently altering the constitutional order. While limited in time, scope, and appointment procedure, Machiavelli concluded that republics must overcome their vulnerabilities to emergencies by resorting to a monarchical or “regal power,”13 empowering a

48  Sveinn M. Jóhannesson single man with the discretionary power to “make decisions without any consultation whatsoever and who, without any right of appeal, might execute his decisions.”14 Machiavelli’s rediscovery of the Roman dictatorship helped spark an intense debate concerning the significance and implications of exceptional powers for republicanism. A series of influential writers—​starting with Jean Bodin and Hugo Grotius and introduced to interregnum England by Robert Filmer, Thomas Hobbes, and Matthew Wren—​ seized on Machiavelli’s account of the dictatorship as a platform to launch a formidable critique of the republican project as a whole.15 These writers charged that republics’ habitual recourse to a dictator betrayed the monarchical presence at the core of republican theory. For all the talk of “government of laws” and “mixed government,” there was also in republican governments some individual or a group of individuals who held uncontrollable sovereign power. They charged that the Roman dictator, like monarchs, exercised this absolute power of command against which there was no appeal.16 As Wren, who was one of Harrington’s most vocal critics, argued, the dictatorship was proof that in republics also “Government flows from the encrease of strength and power in some Man or Men to whose Will the rest submit.”17 Security demanded making “the Governour absolute; for if there be any who can Dispute upon probable Terms the power with him, the State will never be free from Tumult and Sedition.”18 Bodin is famous for distinguishing the dictatorship from sovereignty on the grounds that, while both were absolute and unlimited, the former was not irrevocable or perpetual. The dictatorship was a commission and, like royal commissions in Bodin’s time, it was confined to a set period or task and could be prorogued at the sovereign’s discretion. Yet, since sovereignty should be defined as the absolute and indivisible power to command deriving from a single will, Bodin argued that, in popular states where “the whole people hold the soueraigntie,” it “hath no true ground nor support, if there be not a head with absolute and soueraigne power, to unite them together.” When popular states find themselves in exigent circumstances—​such as war, insurrection, plague, creating new magistracies, or doing “anie other thing of great consequence”—​they constitute “a dictator, as soueraigne Monarch.” Like monarchies, republics revert to the will of a single man “to command with soueraigne power.” Suspending constitutional procedure in favor of a monarchical form concentrating absolute power in a single individual was an admission “that a Monarchie was the anckor whereunto of necessitie they must have recourse.”19 Bodin did not stop there. Although republics conceded to the monarchical principle in extreme times, Bodin argued that dictators were an ineffectual substitute for absolute monarchs. In a monarchy, the commissioner was subject to the effective commands of the sovereign monarch, the sovereignty of the people in an assembly had “no true ground, nor support” except through the dictator himself, who became a sort of uncommanded commander.20 By

Right, might, and technopolitics  49 giving too much power to a dictator, popular states were repeatedly exposed to sedition and conversion into monarchy.21 As Hobbes explained, republics were in a “perpetual state of infancy.” Because the sovereignty was located “in a great assembly,” the people was constantly in the same condition as a child-​monarch in need of a tutor or protector—​the dictator—​to preserve his authority. To exercise its sovereign power in exigent circumstances, the sovereign assembly was perpetually dependent upon a “temporary monarch” capable of issuing absolute commands and had, “at the end of that time, been oftener deprived thereof than infant kings by their protectors, regents, or any other tutors.” The dictator was not formally sovereign “by institution” or compact, but he could readily become so “by acquisition,” or force, because he possessed highest and absolute power.22 Grotius agreed with Bodin that the Roman dictatorship constituted a “temporary Monarchy, which is not subject to the People.” The dictator’s power was absolute and unlimited because his “acts are not subject to another’s Power, so that they cannot be made void by any other human Will.”23 But Grotius went further than Bodin (or Hobbes) to argue that the dictator was a fully-​fledged “Sovereign for a Time.” The dictatorship’s temporary form did not alter its sovereign nature.24 Since “the continuance of a Thing alters not the Nature of it,” by a “temporary Right” the dictator exercised all the acts of civil government “with as much Authority as the most absolute King.” In fact, the Roman people—​the person constituting—​ were not superior to the dictator—​the person constituted—​nor could they revoke his mandate at will. Grotius distinguished the dictator, who exercised absolute power, from “those who are invested with a precarious Power, and which may be at any Time recalled.” Once constituted, the people became dependent on the dictator’s will, and had no choice but obedience to his commands. Grotius cited Cicero that “the Dictatorship had possessed itself of the whole Force of the Royal Authority.” Robert Filmer agreed: the enemies of kings had provided “the royallest evidence for [the superiority of] monarchy in the world.”25 Taken together, this amounted to a formidable critique of the republican dictatorship and, by extension, the republican project as a whole. Notwithstanding distinctions between form and nature, these writers agreed that the dictatorship exposed as untenable the republican idea of a government of laws; it also boiled down to the arbitrary command of a single man. Since the fate of republics was ultimately dependent upon the prerogative or discretionary will of individuals, there was no way to enshrine a distinction between a Cincinnatus and a Caesar and impose effective limitation to guarantee that this man would not use his extraordinary power to subvert the constitutional order. While republics were in urgent need of the dictatorship for their survival, the dictatorship itself, therefore, inevitably gave rise to renewed bouts of sedition, disorder, and civil war against which there was no relief. Paradoxically, the institutional mechanism for guaranteeing security in a republic became the catalyst of its peril.

50  Sveinn M. Jóhannesson

Harrington’s response to Hobbes Harrington wanted to get away from the apparent trade-​off between security under an absolute power or liberty under the rule of law that underpinned the debate on dictatorship. Scholars question whether Harrington should be seen as a Hobbesian theorist of security or Machiavellian proponent of liberty.26 Harrington’s instructive engagement with the question of dictatorship suggests that, while adopting crucial elements from both, he incorporated a richer tradition of republican thought to move beyond them.27 Contrary to the advocates of ancient prudence, who accepted that constitutional government came at the expense of security and stability, as well as their modern critics, who charged that civil disorder was endemic within such regimes, Harrington’s account of the Dictatorship in Oceana was intended to show that constitutional government most effectively guaranteed security in a hostile world of sedition, fear, and civil war. Incorporating elements from the Roman dictatorship with the Venetian Council of Ten and the Judges (that is, dictators) of the Hebrew republic, Harrington replaced the absolutist idea of unity of legislative and executive powers in a single person—​most forcefully argued by Hobbes—​with a republican unity concept of right and might in the people as the anchor for peace and security in Civil War England. As Harrington recounted, Hobbes argued that security from the natural state of war demanded the unity of legislative and executive power in a single person or single group of persons.28 This absolute power over life and death was required to induce the fear that guaranteed the obedience of self-​interested individuals. No constitution or law could restrain the sovereign’s coercive power because such limits were “but words and paper, without the hands and swords of men.” Therefore, it was an error that “in a well-​ordered commonwealth, not men should govern, but the laws.”29 If behind the law is always the sword of men, the sovereign power cannot be subject to effective limits or constraints within the political system. If the sovereign power “were limited, that limitation must necessarily proceed from some greater power” because “he that prescribes limits, must have a greater power than he who is confined by them.”30 When it comes to the crux, there is always an uncontrollable sovereign at the apex of the state by virtue of coercive power to compel obedience. Harrington charged that Hobbes’s idea that security demanded a unity of functions in a single person was wrong because it failed to address the material basis and institutional organization of coercive power. Harrington readily conceded to Hobbes that the law is “but words and breath” without the sword.31 But he rejected Leviathan’s conclusion that this inevitably led to an uncontrollable sovereign. Harrington’s novel contribution was to argue that while it might not be possible to straightforwardly control armed power with written words or constitutional bodies, the two, better yet, could be balanced or unified. Harrington’s argument that constitutional polities most effectively managed emergency situations hinged on the claim that they united “both right

Right, might, and technopolitics  51 and might” in a way that monarchies or feudal regimes could not. The concept of a “unity” or “balance” of “arms and councils,” “power and authority,” and “natural and artificial strength” was at the center of Harrington’s constitutional program.32 Machiavelli and Aristotle were the obvious inspiration for this line of thought, which was widely adopted by republicans in seventeenth-​ century England. If “those who have the command of the arms in a country are masters of the state,” then, in a republic, the citizens must be soldiers and all the soldiers citizens.33 In a republic, this unity meant that the military body consisted of the same persons as the political body; both powers were concentrated in the people.34 Harrington was careful to distinguish the republican concept from Hobbes’s monarchical one. “The mutual embraces of arms and councils” described a vertical relationship between a material base and institutional superstructure; the distribution of military strength in the foundation mirrored the distribution of political power in the superstructure.35 Hobbes’s unity of person, by contrast, was horizontal within the superstructure itself, concentrating all legislative and executive powers in a single individual or council. As will be seen below, Harrington argued that the republican unity concept was not only the most effective guarantee of security but was incompatible with the unity of power functions in a single person or body. In fact, the security and order, so much desired by Harrington and Hobbes alike, demanded splitting, distributing, and balancing power, even in times of emergency. The unity of right and might held the key to understanding the military power basis of the sovereign. Yes, the word could not compel obedience without the sword, but Hobbes’s mistake was to assume that a sovereign, such as the Rump Parliament (1648–​1653), having prevailed in a civil war, possessed the military capacity to govern on a permanent basis. The implications of this failure were dire. Hobbes, whose Leviathan was published in 1651, had failed to predict the demise of the Rump Parliament—​in Harrington’s view, a Hobbesian sovereign monopolizing legislative and executive functions in a single council—​at the hands of the very army that had brought it to power.36 The Rump showed that unity of legislative and executive functions was no guarantee of security at all. Thus, to firmly attach the sword to the constitutional order, attention must be given to the sword’s material basis. Harrington reminded the author of Leviathan that “as the law without this sword it is but paper, so he might have thought of this sword that without a hand it is but cold iron.”37 It was true that the “fear” of the sword secured obedience of the people, but what controls the army itself ? The people may fear the army, Harrington conceded, but the army has no fear—​neither the word or the sword—​since it monopolizes military power.38 Harrington, therefore, introduced a new notion to explain how military power is organized. Instead of fear, an army’s obedience is secured by meeting its “necessity,” and its necessity is met by providing it with sustenance. For Harrington, the more land a man has, the more people he can control and

52  Sveinn M. Jóhannesson organize into his army. The government of a state will depend on how landed property is distributed within its territory. If one man is the dominant landlord in a state, so that he can “overbalance the people,” it is a “monarchy by arms.” If the land is controlled by a few, the government is a “monarchy by nobility,” and a commonwealth, or a republic, if the land is equally distributed among the people.39 Harrington charged that monarchy by arms and monarchy by nobility were inherently unstable forms of government because they failed to effectively combine right and might. Kings always depended on commissions to ambitious officers, autonomous armies, and unruly nobles who had an interest and perpetual power to raise sedition against the constitutional order. In a monarchy by arms, where the king maintained a standing army at his own expense, “it is not in the wit or power of man to cure it of this dangerous flaw, that the janissaries [King’s guards] have frequent interest and perpetual power to raise sedition, and to tear the magistrates, even the prince himself, in pieces.” In a monarchy by a nobility, as England under the feudal balance of lands, “it was not in the power or wit of man to cure it of that dangerous flaw, that the nobility had frequent interest and perpetual power by their retainers and tenants to raise sedition and too levy a lasting war.” Harrington drove home his point that Hobbes’s presuppositions about the efficacy of absolute power did not accord to the realities of political life, listing dozens of examples of monarchs who had been deposed by their nobles, commanders, and advisors.40 This analysis of instability and sedition in monarchies enabled Harrington to cast the fall of the Stuart monarchy into civil war and the failure of the Rump to re-​establish order within the framework of shifting configurations of right and might. The English mixed monarchy, which emerged from the conquests of the Romans, Saxons, Danes, and Normans, was based on a feudal regime of landownership by the few. This “Gothic balance” was inherently unstable because there was no theory of how to secure obedience among the feudal landlords who made and unmade kings according to their various interests. As one such noble family, the Tudors, acquired the crown, they began to weaken the power basis both of their noble rivals and the Church by undermining their control of land. But the eventual consequences were disastrous for the crown, setting the stage for revolution. The lands sold by the nobility went to the hands of the commons, and thus became more equally distributed among the majority of the people. Changing the balance of the lands upset the balance of right and might. When the people gained control of the actual strength of the commonwealth, the clash between crown and people became inevitable.41 As men become equal in terms of land and, by extension, military power, the stage is set for a commonwealth.42 For Harrington, equality of military power means that necessity is insufficient to attach might to the constitutional order. The Rump won the Civil War, but its army was made up of independent individuals who controlled their own arms. It failed to realize

Right, might, and technopolitics  53 that it could not control the people via necessity or fear—​at least not without massive confiscation of land.43 This raises the question of how to bring about a unity of right and might under a new balance of lands where necessity and fear have broken down. Here Harrington introduced the notion of “interest” or “reason” as the mechanism that attaches might to the constitutional order and puts it at the center of a republican theory of right and might. In a republic, military power is used under the individual’s reason or interest; the people obey if it is in their interest to do so, or have good reason, even in the absence of fear and necessity.44 Sedition is neither inevitable nor does it spring from unknowable causes. In other words, the people need an interest in, or a reason for, sedition. These, Harrington explains, are three: “the desire of liberty, the desire of power, and the desire of riches.” Right and might are brought together to underpin “an immortal commonwealth” by distributing liberty, political power, and land (or arms) to the people. “The whole frame of an equal commonwealth is nothing else but such a method wherby the liberty of the people is secur’d to them”; where power is “estated in them” via legislative assemblies; and the popular balance of lands maintained.45 The people’s interest in preserving the constitution is maintained through tripartite constitutional arrangements that prevent the formation of factions accumulating unequal power or wealth, most notably a separation of executive and legislative powers, a bicameral legislature based on strict rotation in office, in addition to agrarian laws that secure the popular balance of lands and arms.46 As a result, the people are not only given an insoluble interest in—​or a reason for—​ preserving the commonwealth but also the physical force to do so. Here Harrington articulates the principle of right and  might: “the might being in the whole people, and the whole superstructures of this commonwealth being nothing else but an equal distribution of common right to the whole people, who are possest of the might; they who have the might, have not the interest to break, but to preserve the orders [of the commonwealth].”47 In a well-​regulated republic, “no man or men in or under it can have the interest; or having the interest, can have the power to disturb it with sedition.”48 “The people have the power, but can have no such interest [to disturb the commonwealth]; and the people having no such interest, no party can have any such power, it being impossible that a party should com to overbalance the people, having their arms in their own hands.”49 In other words, the constitution ensured a government of laws over that of men and this constitution was secure because no one having a reason to undermine it could have the power, and those having the power would never have a reason. As Harrington put  it: “It is not the limitation of sovereign power that is the cause of a commonwealth, but such a libration or poise of orders, that there can be in the same no number of men, having the interest, that can have the power, nor any number of men, having the power, that can have the interest, to invade or disturb the government.”50

54  Sveinn M. Jóhannesson

The Dictatorship of Oceana Harrington accepted the exceptionalism of Machiavelli’s critics and recognized that the question of the dictatorship was the acid test revealing the success or failure of his constitutional program. The Oceanic dictatorship followed the republican model of enshrining constitutionally special provisions in advance and granting power to a special magistracy in the event of crisis that limited its extraordinary power in time, purpose, and scope. Yet Harrington rejected the view that there should be any dichotomous shift derogating the rule of law in favor of unlimited or absolute rule. He judged previous proposals—​including the Roman model—​insufficient because they posited an interim, monocratic, body that superseded or suspended the functions of regular constitutional bodies. The Oceanic dictator, by contrast, was embedded within regular constitutional arrangements. Once a dictator has been appointed in Oceana, “all the councils of the commonwealth not only remain[ed], but remain[ed] in the exercise of all their functions, without the abatement of any.”51 The dictator assumed formidable powers “over life and death,” but these powers were confined to extraordinary cases requiring “speed and secrecy” in which ordinary bodies were not permitted to act to begin with. Within the strict mandate of restoring ordinary procedure, the dictator was empowered to levy men and money, make war and peace, as well as enact temporary legislation, thus anticipating the notion of “legislative dictatorship” in the twentieth century.52 Drawing on the Venetian Council of Ten—​Harrington greatly admired the Venetian republic for its stability over time—​Oceana granted dictatorial powers not to a single man but a “dictatorian council,” pioneering the idea of a dictatorship as a council or committee.53 The council comprised the nine members elected to the council of war; the four tribunes of the people; and nine “extraordinary knights” appointed with the onset of an emergency. Replacing a single man with the plural collegial form, one that incorporated the checks and balances in the superstructure, was crucial to preventing the dictator from gaining an actual interest in subverting the constitutional order.54 The council embraced all the orders of the commonwealth—​the magistracy (council of war), senate (extraordinary persons), and the people (tribunes). It mixed elements of regular (council of war and tribunes) and exceptional (knights extraordinary) institutions. To prevent the dictator from becoming a vehicle of majoritarian oppression, only the senate had the power to summon the dictator; to inhibit him from serving as an instrument of senatorial oppression, the senate appointed only a minority of its members. Crucially, the inclusion of the people’s tribunes on the dictatorial council made sure the council would not act against the people.55 As in Rome, the tribunes were directly elected, annually, by the popular assembly to serve as its chief magistrates as well as commanders-​in-​chief in charge of mustering and disciplining it as a military body. But for most of the Roman republican period, the dictatorship assumed power over the people’s tribunes.56

Right, might, and technopolitics  55 By contrast, Harrington applied the tribunes’ veto directly to the Oceanic dictatorship. Instead of suspending the people’s chief magistrates, popular judgment—​backed by the people’s monopoly on military power—​was formally institutionalized within the dictatorial body itself. In addition to these internal checks, the dictatorial council was subject to comprehensive external review in real time by the popular assembly that could strike down any act or law passed. Moreover, the ordinary procedures ensured strict annual rotation, in addition to time restraints, confining a dictatorship to a period of three months and laws passed to one year unless repealed or confirmed by the people and the senate.57 Furthermore, even if what Harrington termed the “Dictatorian Council” perceived the interest, he wanted to foreclose the possibility that it could gain the actual strength to undermine the constitution. The Dictatorian Council gathered in a single body all legislative and executive functions relating to secrecy and speed for a limited period and purpose. But it is empowered only by law at the level of the superstructure. It does not impact the balance of arms in the foundation. The dictator is given “soverain power in carrying on the orders of the commonwealth,” but he “cannot be understood to have the soverain power by overbalance of strength.” Coercive power, or might, was under the permanent control of the people themselves, who possessed the actual coercive power to enforce internal and external limitations on the dictator. Of course, Oceana’s dictator had no “right” to go beyond his strict mandate. As in Rome, the dictator could act only for “the preservation of the commonwealth as it is established, and for the sudden restitution of the same to the natural channel and common course of government.” Therefore, he could only act against the constitutional order to “perpetuat their power” by “force or arms.” But “the arms of the commonwealth are both numerous, and in a posture or readiness … and they consist of its citizens.”58 A dictator was dependent on the citizen army to carry out his mission; even if he gained the interest, the citizens would refuse to execute orders against the commonwealth. Popular control of arms provided the ultimate safeguard from within the constitutional order for ensuring that dictatorial powers be used only for preserving it because “for the dictator [of Oceana] to bring the citizen to break the commonwealth, were for a general to command his army to cut their own throats.”59 This had been the secret behind the success of the Roman dictatorship. It was not only that the Roman dictator was to act within a prescribed legal framework, but that the people’s control over the army meant that they could actually enforce such constraints.60 When the Decemvirate, for example, sought to makes their dictatorial rule permanent “they could not make it stand one year, because of the citizens in arms.”61 The fatal flaw in the Roman model was the failure to prevent a dictator from having an interest in sedition (because of its monocratic and elite character), which, in time, subverted the popular control of arms through the prolongation of commands. Once the dictators had gained the actual strength—​that is, a partisan army—​to pursue their interested reasons, the republic was doomed.62

56  Sveinn M. Jóhannesson Harrington used the example of the Hebrew Judges to further explain how the Oceanic dictatorship differed from monarchy in terms of coercive power.63 There was no doubt that monarchy placed “the people at the discretion of the king.” Yet, as the example of the Hebrew judges demonstrated, the Oceanic dictator “being without any balance [of arms] at all, was at the discretion of the people.”64 That the king was a master and the dictator a servant was revealed in the balance of arms vis-​à-​vis the people. Therefore, Harrington believed, the dictatorship had defined and overcome the forces that determined a transition from a temporary dictatorship safeguarding the constitutional order and permanent tyranny leading to its overthrow. It enshrined a sophisticated constitutional and legal distinction, backed by the coercive force of the commonwealth, which ruled out the passage from one to the other. As Harrington concluded, there was no law without force or force unrestrained by law: “the Dictator of Oceana cannot have the interest, or, having the interest, cannot have the power or strength to perpetuat that magistracy.”65 The Dictatorship of Oceana showed that “the unity of government” that guaranteed its security consisted not in “the unity of a person, that may do what he list” but “in such a form, which no man can have the will, or having the will can have the power to disturb” the commonwealth.66

Harringtonian nightmares in the Scottish Enlightenment Harrington’s alternative theory of constitutional dictatorship was highly influential in the following century. Following the post-​restoration return of the monarchy and hereditary nobility, a group of English and Scottish writers adapted it into a powerful critique of the royal prerogative, and the rise of an entirely new kind of enemy—​the professional standing army—​ under its aegis. English writers such as John Trenchard, Robert Moyle, and James Toland attacked the prerogative and the standing army for upsetting the Gothic balance. Unlike Harrington, however, they sought to turn back the clock and restore the old balance.67 By contrast, Scot Andrew Fletcher of Saltoun pioneered another way of thinking about Harrington’s problem of dictatorship in the post-​restoration era. In contrast with the English critics, Fletcher followed Harrington to argue that modern politics could no longer be understood by Gothic precedents. But Fletcher’s account of the fall of the Gothic balance—​and its implications for post-​feudal politics—​departed radically from Harrington. Drawing on Francis Bacon’s account of the “new science,” Fletcher argued that “the restoration of learning, the invention of printing, of the needle and of gunpowder” had induced “a total alteration” in the nature of government by wrenching apart the Harringtonian identity of law and force that had made the rule of law effective.68 The technological revolution set in motion new and unpredictable historical forces that culminated in the rise of the professional standing army. Starting in most countries of Europe in the sixteenth century, the technological revolution generated processes of economic specialization that facilitated

Right, might, and technopolitics  57 increased trade and luxury in Europe. In Fletcher’s account, this rise in consumption was chiefly driven by the feudal lords. If Harrington argued that the Crown had distributed the land away from the nobles, Fletcher argued that the lords were the agents of their own demise. Luxurious consumption plunged them into great debts that could only be serviced by selling lands and exchanging their vassals’ military obligations into money. The military vacuum that resulted was, however, not filled by the people, as in Harrington’s story. Instead, the Crown seized the opportunity by raising increasingly large armies of volunteers and mercenaries, paid for by intensive taxation on a greatly expanded trade, which unarmed subjects could not oppose. While these forces were initially raised, temporarily, for present exigencies, the invention of gunpowder, by changing “the methods of war,” furnished the Crown with a pretext to make them perpetual. The emergence of the professional standing army in the wake of the Nine Years’ War meant that “the power of the sword was transferred from the subject to the king.” The new technologies of war, together with the possibility of paying for expansive armies by fiscal machinery, had moved coercive power from the domain of the people and into the permanent control, upkeep, and possession of the government.69 Crown supporters, such as Daniel Defoe, maintained that the post-​1688 constitutional settlement that granted Parliament control of the purse guaranteed that it could grant or refuse the executive the funds required to pay for the armies that were otherwise in its exclusive control.70 Fletcher responded to this proto-​liberal argument in Harringtonian terms. Parliament, Fletcher pointed out, had no way to enforce such a covenant; it was “an empty promise.” Since “he that is armed is always master of the purse of him that is unarmed,” there was no limitation “so essential to the liberties of the people, as that which placed the sword in the hands of the subject.”71 Fletcher concluded that the post-​feudal transition constituted a transition “from monarchy to tyranny.”72 If Fletcher saw the rise of the standing army as a moment of profound historical change, the new age did not represent a trade-​off between security and liberty. It was not that liberty had been sacrificed for enhanced security from religious war or against an increasingly belligerent France. Instead, a royal prerogative empowered by the new technologies of war meant less security as well as less liberty. It plunged modern politics into uniquely unstable and precarious terrain. For Adam Ferguson, one of Fletcher’s Scottish disciples, this integration of machines and mechanical technology into war and commerce set the stage for new escalations of violence and revolution. Ferguson emphasized that it was not simply that the executive had been empowered with the sword, but also that the nature of the sword itself had been transformed. The invention of gunpowder had sparked the development of the division of labor within the military profession, leading to an ever-​increasing improvement of technical skill. The professional army became an apparatus of mechanical discipline concerned with enhancing its power through the mechanization of the body—​Foucault’s “technopolitics.”73 In the feudal world, war required

58  Sveinn M. Jóhannesson personal valor and skill, the natural domain of the nobility. But in the age of heavy artillery, muskets, and clockwork armies, soldiery had become a mechanical profession that required no capacity and succeeded, Ferguson worried, “best under a total suppression of sentiment and reason.” The army became “an engine, the parts of which are men.” Whereas statesmanship and intellectual labor became the new domain of the propertied and ambitious, the mechanical profession of war had been devolved onto a propertyless mass, content with a subordinate station in exchange for subsistence.74 Once the army had been transformed into a machine—​an instrument—​it became exceedingly dangerous to the rule of law. As the repository of coercive power, Harrington’s army embodied a substantive commitment to the constitutional order. The standing army did not; it was a mere automaton. As Ferguson concluded, the rise of the standing army had created a Harringtonian nightmare scenario where law and authority became uncoupled from coercive power, and “one set of men” possessed “an interest in the preservation of civil establishments, without the power to defend them,” while the other possessed “this power, without either the inclination or the interest.”75 Once a pressing emergency provided a pretext, there would be no effective restraint to prevent an ambitious individual commanding popular acclaim from directing the army against the constitution and introducing a military dictatorship. “By placing the sword where they have given a distaste to civil establishments, they prepare for mankind the government of force.”76

James Madison and the state of exception James Madison—​a keen reader of Harrington, Fletcher, and Ferguson—​ entered this debate in the context of the post-​revolutionary situation in the United States.77 While the Revolution had come to an end, rebellion continued to rage throughout the new nation. The new United States shared many of the attributes of Harrington’s view of interregnum England such as the equality of property and arms, and, indeed, the absence of kingship and hereditary nobility. As Shays’ Rebellion seemed to overwhelm the government of Massachusetts in 1786, its governor, James Bowdoin, sought federal assistance in quelling the malcontents. There were, however, no provisions in the Articles of Confederation that permitted a federal imposition.78 What did it mean that the Massachusetts authorities—​and a handful of other states—​could not subdue a rebellious minority with conventional republican institutions? Drawing on Harrington’s theory of dictatorship, Madison explained that “force and right are necessarily on the same side in republican governments.” According to republican theory, insurrection should be readily containable through republican measures. It “seem[ed] not to square with the republican theory, to suppose, either that a majority have not the right, or that a minority will have the force, to subvert a government.” Therefore, it was “difficult to reconcile an interference of Congs. in the internal controversies of a State … with the principles of Republican Govts. which as they rest on

Right, might, and technopolitics  59 the sense of the majority, necessarily suppose power and right to be on the same side.”79 “Theoretic reasoning,” however, had to be “qualified by the lessons of practice.”80 Harrington predicted that the unity of right and might would effectively underpin public order, but the experience of the United States suggested that this was no longer the case. To explain this conundrum, Madison probed the conditions of possibility underlying Harrington’s identity model. It depended on the assumption that politics and armed conflict were governed by the same logic; both came down to a question of numbers. For Harrington’s theory to work, “in a trial of actual force,” victory would have to be “calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election.” Like a majority of citizens’ votes would determine the outcome of an election, so would a majority of citizens’ swords decide any appeal to arms.81 Madison argued that the technological transformation of warfare wrenched apart the unity of force and law by infusing force with a new and distinct logic. It was a fact that “a minority may in an appeal to force, be an overmatch for the majority” because it was in possession of superior military expertise, tactical skill, or the financial resources to purchase access to them.82 In war, “science is uniformly superior to numbers.” An intimate knowledge of “mechanical, geometrical, moral and physical rules” gave “a small force the faculty to combat with advantage superior numbers.”83 As twentiethth-​century republican theorist Hannah Arendt explained, whereas democratic politics “always stand in need of numbers,” coercive power can “manage without them because it relies on implements” that are “designed and used for the purpose of multiplying natural strength until, in the last stage of their development, they can substitute for it.”84 The extreme form of democratic politics is “All against One”; the extreme form of coercive power in the technological age is “One against All.” Long before Arendt, Madison concluded that the new technologies of war presented serious challenges to modern politics. In particular, they had made it “chimerical” that a resort to the sword would be determined by the same factors, that is, numbers that determined the outcome of an election. By infusing force with a distinct logic, Madison described how early modern technological developments constituted the historical conditions of possibility for what Giorgio Agamben calls the “zone of indistinction,” characterizing the state of exception, where force had become irreducible to law.85 It changed the republican dictatorship into something different, giving new dimensions to the problem of the “force-​of-​law.” Agamben is correct to suggest that the republican dictatorship is not really the model for the modern state of exception as twentieth-​century scholars such as Carl Schmitt, Carl Friedrich, and Clinton Rossiter maintained.86 It was neither a platform for unrestrained coercive power nor a catalyst for the consolidation of the centralized modern state. At least in Harrington’s theory, the dictatorship offered a vocabulary for the critique of the centralization

60  Sveinn M. Jóhannesson and instrumentalization of coercive power within the state’s administrative apparatus. Madison certainly thought so. Unlike Fletcher and Ferguson, who believed it was possible to reconstruct a neo-​Harringtonian world where citizen militias replaced the standing army, Madison accepted that the central state must assume monopoly of superior force—​including standing armies.87 Madison did not, however, fall back on the Royalist argument, which was becoming the liberal argument: that the control of the purse provided a sufficient check. Constitutional checks and balances were essential, of course, but the success of Hamilton’s fiscal program in the early 1790s confirmed, in Madison’s eyes, Harrington’s prediction that covenants could not stand by themselves.88 Against the technopolitics of the Federalists—​and in response to genuine concerns of geopolitical insecurity in the age of the French Revolutionary Wars—​Madison and his Jeffersonian collaborators searched creatively for modern solutions to the problem of forging a substantive identity between might and right. In particular, they believed that Enlightenment science provided them with substantial ethical resources which they believed were capable of resisting the instrumentalist legacy modern politics, and grounding a commitment to individual liberty and the rule of law. Much of their state-​building efforts in the decades following the inauguration of the federal government were about harnessing the resources of natural and moral philosophy for making machine technology safe for republicanism.89

Conclusion: republican dictatorship reconsidered In contemporary scholarly debates on the relationship between states of emergency, the rule of law, and democratic procedure, the Roman dictatorship is widely seen as the most influential paradigm for the modern state of exception.90 While much of this literature is instructive, scholars routinely characterize the dictatorship as an absolute and unlimited power, representing a dichotomous transition from pluralism and ordinary procedure to exceptional absolutism in times of crisis. It is regarded as evidence that—​to strike the right “balance” between liberty and security—​constitutional regimes must derogate the rule of law in favor of executive prerogative. It is a mistake, however, that this is the only view of the republican dictatorship. In fact, it owes much to the partisan reading of republicanism’s critics who seized on Machiavelli’s account of the dictatorship as a vehicle to discredit the republican project as a whole. Characterizing it as an absolute and unlimited power, they argued that republics’ habitual recourse to a dictator revealed that, when it really counted, republics too were monarchies. The reality was that, even in republics, some people got to tell others what to do in terms of obedience and command. This partial reading of the dictatorship designed to discredit it won out in the twentieth century, adopted even by liberals searching for models to resist Carl Schmitt’s bleak assessment of the liberal future. When political scientists such as Clinton Rossiter, Carl Friedrich, and Frederick Watkins looked to

Right, might, and technopolitics  61 the republican dictatorship for models in the wake of the Cold War, they concluded that, like the Romans, the United States must sacrifice liberty for security by submitting, temporarily, to “as absolute a ruler as could well be imagined”—​a “kingly power.”91 I have argued here that there is an alternative theory of constitutional dictatorship that has subsequently been eclipsed by these critics. James Harrington discovered a rich republican tradition concerning the problem of constitutional emergency power and introduced novel elements from the Venetian Council of Ten and the Judges of the Hebrew Republic and creatively combined them with a more sympathetic reading of Machiavelli and the Roman model. Enabling swift and decisive action without submitting the people to discretionary prerogative, Harrington did not simply argue that the Dictatorship of Oceana made emergency powers compatible with the government of laws. By combining “right and might,” it meant that constitutional government more effectively guaranteed the security of the state than any form of absolute government. The Oceanic dictatorship was not only substantially different from monarchy. By resisting the creation of an autonomous or uncontrolled power at the apex of the hierarchy of the state, the Oceanic commonwealth, in contrast to Hobbes’s Leviathan, also effectively foreclosed the possibility that exceptional powers would be used to subvert the constitutional order itself. Harrington’s eighteenth-​ century disciples explained how early modern technological developments constituted the historical conditions of possibility for the “zone of indistinction” that characterizes the modern state of exception. Madison, Ferguson, and Fletcher feared that the technological transformation of warfare in particular had wrenched apart the unity of force and law, and thus completely altered the terms on which constitutional government operated. If the problem of the state of exception is not an inherent quality of law, but is historically contingent upon the emergence and integration of early modern technological developments into specific forms of state practice, gives reason to qualify the somewhat bleak conclusions of liberal as well as critical theorists as to the possibilities of the rule of law to respond to emergencies. If the contradictions between law and power exposed in times of acute crises are more a product of a specific historical constellation of political and technological forces than an inherent characteristic of law, then there may be good reasons for thinking that they can be negotiated to reclaim the rule of law.

Notes 1 James Madison, “Notes of Debates:  In Congress. Feb. 19, 1787,” in Journals of the Continental Congress, 1774–​1789, XXXIII, ed. Worthington C. Ford (34 vols., Washington, 1904–​1937), 720–​721. On Shays’ Rebellion, see David P.  Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980); Leonard L. Richards, Shays’s Rebellion: The American Revolution’s Final Battle (Philadelphia: University of Pennsylvania Press, 2002).

62  Sveinn M. Jóhannesson 2 For classic statements, see Peter S.  Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775–​1787 (Philadelphia: University of Pennsylvania Press, 1983); Woody Holton, Unruly Americans and the Origins of the Constitution (New York: Hill and Wang, 2007); Gordon Wood, Creation of the American Republic, 1776–​1787 (Chapel Hill: University of North Carolina Press, 1998). More recently, see Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (Cambridge, MA: Harvard University Press, 2014). 3 Rock Brynner, “Cromwell’s Shadow over the Confederation:  The Dread of Cyclical History in Revolutionary America,” Proceedings of the Massachusetts Historical Society 106 (1994): 35–​52. 4 Harrington’s deep ambivalence at the death of Charles I  is instructive. Rachel Hammersley, James Harrington:  An Intellectual Biography (Oxford:  Oxford University Press, 2019). 5 I agree with Kalyvas as to the importance of Harrington’s intervention, but the argument developed here contradicts his view that Harrington saw the dictatorship as a “necessity” arising from the imperfection of republican forms, one that could be limited by virtue, and that he ended up “reinforcing its absolute character.” Andreas Kalyvas, “Sublime Dignity of the Dictator: Republicanism and the Return of Dictatorship in Political Modernity,” in African, American and European Trajectories of Modernity:  Past Oppression, Future Justice? ed. Peter Wagner (Edinburgh: Edinburgh University Press, 2018), 77–​96. 6 David Hume, Idea of a Perfect Commonwealth (Indianapolis, IN: Liberty Fund, 2016). 7 In neo-​Roman and civic humanist articulations of republican thought, Harrington’s constitutional program is usually set aside for a focus on the moral element of his thought, namely liberty as non-​domination or liberty as virtuous participation in the polity. See J.G.A. Pocock, “Introduction,” The Commonwealth of Oceana and A System of Politics (Cambridge: Cambridge University Press, 1992), vii–​xxii; J.G.A. Pocock, The Machiavellian Moment. Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 1975); Quentin Skinner, Liberty Before Liberalism (Cambridge:  Cambridge University Press, 1998); Jonathan Scott, Commonwealth Principles:  Republican Writing of the English Revolution (Cambridge: Cambridge University Press, 2004); Jonathan Scott, “The Rapture of Motion,” in Political Discourse in Early Modern Britain, eds. Nicholas Phillipson and Quentin Skinner (Cambridge: Cambridge University Press, 1993), 140–​166. 8 John Ferejohn and Pasquale Pasquino, “The Law of Exception. A Typology of Emergency Powers,” International Journal of Constitutional Law 2 (1993):  210–​ 239. Carl Schmitt’s 1921 study Dictatorship omits Harrington completely. See Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle, trans. Michael Hoelzl and Graham Ward (Cambridge: Polity Press, 2014). 9 For this literature, focused mainly on Machiavelli and Rousseau, see Marco Geuna, “Machiavelli and the Problem of Dictatorship,” Ratio Juris 28, no. 2 (June 2015): 226–​241; Marc de Wilde, “Dictator’s Trust: Regulating and Constraining Emergency Powers in the Roman Republic,” History of Political Thought 33, no. 4 (Autumn 2012): 555–​577; Marc de Wilde, “Silencing the Laws to Save the Fatherland:  Rousseau’s Theory of Dictatorship between Bodin and Schmitt,” History of European Ideas 45, no.  8 (2019):  1107–​ 1124; Pasquale Pasquino,

Right, might, and technopolitics  63 “Remarks on Rousseau’s Dictatorship between Machiavelli and Carl Schmitt,” Storia del pensiero politico 1 (2013):  145–​ 154; Claude Nicolet, “Dictatorship in Rome,” in Dictatorship in History and Theory:  Bonapartism, Caesarism and Totalitarianism, eds., Peter Baehr and Melvin Richter (Cambridge:  Cambridge University Press, 2004), 263–​278. 10 Giorgio Agamben, State of Exception (Chicago: Chicago University Press, 2005). 11 Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon Books, 1977). 12 Scott, Commonwealth Principles, 124–​125. 13 Niccolo Machiavelli, Discourses on Livy, trans. Julia Conaway Bondanella and Peter Bondanella (Oxford: Oxford University Press, 1997), 96. 14 Ibid., 92. 15 As the Weimar jurist Carl Schmitt would later echo, the exception confirmed “not only the rule but also its existence.” Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. G. Schwab (Cambridge, MA: MIT Press, 1985), 15. 16 The dictator had “absolute power to govern the commonwealth” that placed him “above the law.” Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, ed. and trans. Julian H. Franklin (Cambridge: Cambridge University Press, 1992), 113, 296. 17 Matthew Wren, Considerations on Mr. Harrington’s Commonwealth of Oceana: Restrained to the First Part of the Preliminaries (London, 1657), 24. 18 Matthew Wren, Monarchy Asserted, or the State of Monarchicall and Popular Government in Vindication of the Considerations upon Mr. Harrington’s Oceana (London, 1659), 43–​44. 19 Jean Bodin, The Six Books of a Commonweale, ed. Kenneth D. McRae (New York: Arno Press, 1979), 715. 20 Ibid., 715–​716. 21 In republics, “the greater the charge is given by commission, the more need it is to have it in short time expired; least longer power might give occasion to ambitious minds to take unto themselves the government, and so to oppress the libertie of the state.” Ibid., 282, 423, 421, 420. 22 Thomas Hobbes, Leviathan, ed. J.C.A. Gaskin (New  York:  Oxford University Press, 1998), 127. 23 Hugo Grotius, The Rights of War and Peace, trans. Richard Tuck (Indianapolis, IN: Liberty Fund, 2005), vol. 1, 259, 283–​285. 24 This debate is recorded in Carl Schmitt, Dictatorship. 25 Robert Filmer, “Observations upon Aristotles Politiques, Touching Forms of Government Together with Directions for Obedience to Governours in Dangerous and Doubtful Times,” in Filmer:  Patriarcha and Other Writings, ed. Johann P.  Sommerville (Cambridge:  Cambridge University Press, 1991), 259. See also Robert Filmer, “Patriarcha,” in Filmer:  Patriarcha and Other Writings, ed. Johann P. Sommerville, 1–​64; Robert Filmer, “Observations Concerning the Original Government,” in Filmer:  Patriarcha and Other Writings, ed. Johann P. Sommerville, 224. 26 For the question of whether Harrington owed more to Hobbes than Machiavelli, see Felix Raab, The English Face of Machiavelli:  A Changing Interpretation, 1500–​1700 (London and Toronto: Routledge and Kegan Paul and University of Toronto Press, 1964); Scott, “The Rapture of Motion,” 140–​166; Arihiro Fukuda,

64  Sveinn M. Jóhannesson Sovereignty and the Sword:  Harrington, Hobbes and Mixed Government in the English Civil Wars (Oxford: Oxford University Press, 1997). 27 See Eric Nelson, The Greek Tradition in Republican Thought (Cambridge: Cambridge University Press, 2004)  and Eric Nelson, The Hebrew Republic:  Jewish Sources and the Transformation of European Political Thought (Cambridge, MA: Harvard University Press, 2011). 28 James Harrington, “The Commonwealth of Oceana,” in The Oceana and Other Works of James Harrington, with an Account of His Life by John Toland, ed. John Toland (London: Becket and Cadell, 1771), 89–​90. 29 “What man does not find himself governed by them he fears, and believes can kill or hurt him when he obeyeth not?” Hobbes, Leviathan, 454. 30 Thomas Hobbes, Man and Citizen (De Homine and De Cive), ed. B.  Gert (Indianapolis, IN: Hackett Publishing, 1991), 187. 31 Harrington, “The Commonwealth of Oceana,” 89. 32 James Harrington, “The Art of Lawgiving,” in The Oceana and Other Works of James Harrington, with an Account of His Life by John Toland, ed. John Toland (London:  Becket and Cadell, 1771), 531; Harrington, “The Commonwealth of Oceana,” 153, 177. 33 Quoted in John Trenchard and Walter Moyle, An Argument Showing, that a Standing Army is inconsistent with a Free Government, and absolutely destructive to the Constitution of the English Monarchy (London, 1697), 14. For Machiavelli, “good laws cannot exist where there are no good arms,” and the latter was achieved by arming the citizenry. See Marco Geuna, “Machiavelli and the Problem of Dictatorship,” 234. In general on Machiavelli, Harrington, and the question of armed citizenship, see Pocock, The Machiavellian Moment. 34 Assemblies of the electorate and musters of the militia are one and the same; “parlaments … create the armys” and the “armys with the golden vollys of the ballot at once create and salute her councils.” Harrington, “The Commonwealth of Oceana,” 153. 35 Ibid. 36 For an illuminating discussion on this point, see Fukuda, Sovereignty and the Sword, 69. 37 Harrington, “The Commonwealth of Oceana,” 92. 38 Ibid.,  89–​90. 39 Ibid., 91. 40 Ibid., 105. 41 Ibid., 91, 120–​122, 125. 42 Ibid., 91. 43 Ibid., 122. 44 Ibid.,  88–​90. 45 Ibid., 305. 46 Ibid., 171–​174. 47 Harrington, “The Art of Lawgiving,” 531. 48 Harrington, “The Commonwealth of Oceana,” 104. 49 James Harrington, “The Prerogative of Popular Government,” in The Oceana and Other Works of James Harrington, with an Account of His Life by John Toland, ed. John Toland, 305. 50 Harrington, “The Art of Lawgiving,” 494; Harrington, “The Prerogative of Popular Government,” 310.

Right, might, and technopolitics  65 51 Harrington, “The Art of Lawgiving,” 508. 52 Harrington, “The Commonwealth of Oceana,” 179; Harrington, “The Art of Lawgiving,” 508. On legislative dictatorship, see Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, NJ: Princeton University Press, 1948). 53 Harrington, “The Prerogative of Popular Government,” 359. 54 Harrington, “The Commonwealth of Oceana,” 179. The security in the frame of the Oceanic dictator went beyond “any example or interest of prolongation to be found either in the Roman dictator or the Venetian council of ten.” Harrington, “The Art of Lawgiving,” 531. 55 Harrington, “The Art of Lawgiving,” 508. 56 Nomi Lazar, States of Emergency in Liberal Democracies (Cambridge: Cambridge University Press, 2008). 57 Harrington, “The Art of Lawgiving,” 508; Harrington, “The Prerogative of Popular Government,” 359–​360. 58 Harrington, “The Art of Lawgiving,” 531. 59 Ibid. 60 Harrington’s view here, which is close to Machiavelli’s, is very different from subsequent explanation for the success of the Roman dictatorship as merely depending on formal limitation or informal stipulations. For formal restraints, see Rossiter, Constitutional Dictatorship. For informal restraints, see Lazar, States of Emergency in Liberal Democracies; and de Wilde, “Dictator’s Trust: Regulating and Constraining Emergency Powers in the Roman Republic.” 61 Harrington, “The Art of Lawgiving,” 531. 62 Harrington, “The Prerogative of Popular Government,” 365. 63 In general on Harrington and Jewish sources, see Nelson, The Hebrew Republic, and Ronald Beiner, “James Harrington on the Hebrew Commonwealth,” Review of Politics 76, no. 2 (Spring 2014): 169–​193. 64 Harrington, “The Art of Lawgiving,” 476. 65 Ibid., 531. 66 James Harrington, “Pian Piano; or, Intercourse between H.  Ferne, D.D.  and J. Harrington, Esq; Upon Occasion of the Doctor’s Censure of the Commonwealth of Oceana,” in The Oceana and Other Works of James Harrington, with an Account of His Life by John Toland, ed. John Toland, 667–​668. 67 By making the militia “consist of the same parts as the government, where the king was general, the Lords by virtue of their castles and honors, the great commanders and the freeholders by their tenures the body of the army.” Trenchard and Moyle, An Argument Showing, that a Standing Army is inconsistent with a Free Government, 5. See also Lois G. Schwoerer, No Standing Armies: The Anti-​ Army Ideology in Seventeenth-​Century England (Baltimore, MD: Johns Hopkins University Press, 1974). 68 Andrew Fletcher, “A Discourse of Government with relation to Militias,” in Andrew Fletcher:  Political Works, ed. John Robertson (Cambridge:  Cambridge University Press, 1999), 4–​7. See also John Robertson, The Scottish Enlightenment and the Militia Issue (Edinburgh: John Donald, 1985). 69 Andrew Fletcher, “A Discourse of Government with relation to Militias,” 7–​10. 70 Daniel Defoe, “An Argument Shewing, that a Standing Army, with Consent of Parliament, is not Inconsistent with a Free Government,” in Selected Writings

66  Sveinn M. Jóhannesson of Daniel Defoe, ed. James T. Boulton (Cambridge: Cambridge University Press, 1965),  35–​50. 71 Andrew Fletcher, “A Discourse of Government with relation to Militias,” 3. 72 “Not only that government is tyrannical, which is tyrannically exercised; but all governments are tyrannical, which have not in their constitution a sufficient security against the arbitrary power of the prince.” Andrew Fletcher, “A Discourse of Government with relation to Militias,” 3. 73 Foucault, Discipline and Punish. See also Simon Schaffer, “Enlightened Automata,” in The Sciences in Enlightened Europe, eds. William Clark, Jan Golinski, and Simon Schaffer (Chicago: Chicago University Press, 1999), 126–​165. 74 Adam Ferguson, An Essay on the History of Civil Society (London, 1793), 305, 452. See also Ian McDaniel, Adam Ferguson in the Scottish Enlightenment (Cambridge, MA: Harvard University Press, 2013), 54–​62. 75 Ferguson, An Essay on the History of Civil Society, 386. 76 Ibid., 387. 77 In general for Harrington’s impact on the founding generation see Theodore W. Dwight, “Harrington and his Influence upon American Political Institutions and Political Thought,” Political Science Quarterly 2, no. 1 (1887): 1–​44. 78 See Sveinn M.  Jóhannesson, “ ‘Securing the State’:  James Madison, Federal Emergency Powers and the Rise of the Liberal State in Postrevolutionary America,” Journal of American History 104, no. 2 (September 2017): 363–​385. 79 “The principles of Republican Gov.,” he noted, “which as they rest on the sense of the majority, necessarily suppose power and right always to be on the same side.” Madison, “Notes of Debates: In Congress. Feb. 19, 1787,” 720–​721. 80 James Madison, “Federalist 43,” in The Federalist Papers, by James Madison, Alexander Hamilton, and John Jay, ed. Clinton Rossiter (1788; New York, 1961), 276–​277. 81 Ibid. 82 Ibid. James Madison, “Vices of the Political System of the United States,” in Papers of James Madison. Congressional Series, IX, ed. Robert Allen Rutland and Wiliam Munford Ellis Rachal (Chicago: Chicago University Press, 1973), 350–​352. 83 “Military Academy,” American State Papers: Military Affairs 1, 142–​143. 84 As a result, “the revolution in technology, a revolution in tool-​making, was especially marked in warfare.” Hannah Arendt, On Violence (New  York:  Mariner Books, 1970), 41–​42, 46. 85 Agamben, State of Exception,  38–​39. 86 Ibid.,  47–​48. 87 See Robertson, The Scottish Enlightenment and the Militia Issue. 88 Colleen A.  Sheehan, The Mind of James Madison:  The Legacy of Classical Republicanism (Cambridge: Cambridge University Press, 2015). 89 See Sveinn M. Jóhannesson, The Scientific-​Military State: Science and the Making of American Government, 1776–​ 1855 (Ph.D.  diss., University of Cambridge, 2018). 90 See Ferejohn and Pasquino, “The Law of Exception. A Typology of Emergency Powers,” 210–​239; Bruce Ackerman, Before the Next Attack:  Preserving Civil Liberties in an Age of Terrorism (New Haven, CT: Yale University Press, 2006); Lazar, States of Emergency in Liberal Democracies; Karin Loevy, Emergencies in Public Law: The Legal Politics of Containment (Cambridge: Cambridge University

Right, might, and technopolitics  67 Press, 2018); David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge:  Cambridge University Press, 2009); Oren Gross and Fiona Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006). 91 Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies, 17; Carl J. Friedrich, Constitutional Government (New York: Ginn and Company, 1950); Frederick M. Watkins, “The Problem of Constitutional Dictatorship,” in Public Policy, eds. C.J. Friedrich and Edward S. Mason (Cambridge: Cambridge University Press, 1940), 324–​379.

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70  Sveinn M. Jóhannesson Schwoerer, Lois G. No Standing Armies:  The Anti-​Army Ideology in Seventeenth-​ Century England. Baltimore, MD: Johns Hopkins University Press, 1974. Scott, Jonathan. Commonwealth Principles:  Republican Writing of the English Revolution. Cambridge: Cambridge University Press, 2004. Scott, Jonathan. “The Rapture of Motion.” In Political Discourse in Early Modern Britain, edited by Nicholas Phillipson and Quentin Skinner, 143–​170. Cambridge: Cambridge University Press, 1993. Sheehan, Colleen A. The Mind of James Madison:  The Legacy of Classical Republicanism. Cambridge: Cambridge University Press, 2015. Skinner, Quentin. Liberty Before Liberalism. Cambridge: Cambridge University Press, 1998. Szatmary, David P. Shays’ Rebellion:  The Making of an Agrarian Insurrection. Amherst: University of Massachusetts Press, 1980. Trenchard, John, and Walter Moyle. An Argument Showing, that a Standing Army is inconsistent with a Free Government, and absolutely destructive to the Constitution of the English Monarchy. London, 1697. Watkins, Frederick M. “The Problem of Constitutional Dictatorship.” In Public Policy, edited by C. J. Friedrich and Edward S. Mason, 324–​379. Cambridge: Cambridge University Press, 1940. Wilde, Marc de. “Dictator’s Trust:  Regulating and Constraining Emergency Powers in the Roman Republic.” History of Political Thought 33, no. 4 (Autumn 2012): 555–​577. Wilde, Marc de. “Silencing the Laws to Save the Fatherland:  Rousseau’s Theory of Dictatorship between Bodin and Schmitt.” History of European Ideas 45, no. 8 (2019): 1107–​1124. Wood, Gordon. Creation of the American Republic, 1776–​1787. Chapel Hill: University of North Carolina Press, 1998. Wren, Matthew. Considerations on Mr. Harrington’s Commonwealth of Oceana: Restrained to the First Part of the Preliminaries. London: Samuel Gillibrand, 1657. Wren, Matthew. Monarchy Asserted, or the State of Monarchicall and Popular Government in Vindication of the Considerations upon Mr. Harrington’s Oceana. London: 1659.

3  Exception as alibi Rhetorics of emergency and bare life in the War on Terror Alexandra S. Moore

Immediately following the attacks of September 11, 2001, the administration of U.S. President George W. Bush invoked a national emergency and historical irruption in order to justify what many have theorized, after the work of Giorgio Agamben and Carl Schmitt, as a state of exception—​the suspension of law and legal norms. In the eyes of the administration, not only were the attacks a danger to the nation and its government, but the mode of attack also signaled a break with expected modes of armed conflict. Emergency rhetoric became new law and policy to bolster the power of the executive branch in extraordinary ways. The administration claimed the right to kidnap, detain, and interrogate suspected terrorists anywhere in the world, outside of judicial review, and without regard for the Geneva Conventions; use force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”;1 spy on U.S.  citizens; and try suspects in military commissions and tribunals as opposed to through the judiciary. These initiatives were repeatedly deemed necessary to bolster the government’s ability to face an “unusual and extraordinary threat.”2 The Guantánamo Bay naval base and detention center has become a key symbol of the U.S. response, and a site where the implications and legacies of that response persist. This chapter responds to the invocation of emergency and exceptionality in the War on Terror by exploring, first, the slide between an extraordinary attack and the exception of law and, second, the temporalities and ideologies used to sustain those claims of emergency and exceptionality and deploy them to different ends. I argue that reading the War on Terror, and more particularly the role of the Guantánamo Bay detention center, in terms of exception both elides the role of law in prosecuting the War on Terror and masks the long history of legalized abuse conducted in concert with U.S.  imperialism and domestic racism. This longer history also affords a critique of Agamben’s theory of the state of exception, particularly regarding the concept of a threshold or a “zone of anomie,” “indistinction,” or “indifference” between juridical and extra-​juridical power, and, with it, his stark separation of bare life from legal personhood. Following Derek Gregory’s scholarship in

72  Alexandra S. Moore this area as well as Agamben’s own writings, I examine several declarations by President Bush in the wake of the attacks of September 11: Declaration of National Emergency by Reason of Certain Terrorist Attacks (Proclamation 7463, September 14, 2001); Memorandum of Notification (September 17, 2001); Military Order of November 13, 2001; and the Directive on the Treatment of Detainees (February 7, 2002). Analyzing Agamben’s response to President Bush’s declarations, I draw on the work of legal scholars to argue for situating the Guantánamo detention center and its attendant legal instruments in a much longer juridico-​political history of colonial and imperial violence that is constitutive of, rather than an exception to, norms in international humanitarian law (IHL). This longer history, in turn, has produced widely differentiated legal subject positions and, thus, presents a challenge to a core tenet of Agamben’s theories—​the figure of bare life, of the abject, disposable life, abandoned by law as the alternative to legal personhood. I conclude by juxtaposing those historical and theoretical discussions to writings by former Guantánamo prisoners to underscore what Agamben must foreclose in order to conceptualize these prisoners as bare life. Work by Mansoor Adayfi and Mohamedou Ould Slahi, both of whom continue to live precariously in the aftermath of imprisonment at Guantánamo, offers a striking rejoinder to the conception of bare life. Building upon Kelly Oliver’s theorization of subjectivity as interrelational rather than predicated upon a dualistic antagonism between self and other, I argue that Adayfi and Slahi demonstrate complex subject positions that would be foreclosed by the category of bare life as well as by the simplistic, binary choice between bare life and full legal personhood. In drawing upon Oliver’s psychoanalytic approach to subjectivity to consider biopolitical thinking about subjecthood, I examine the ways in which Adayfi and Slahi demonstrate alternative subject positions, not by presenting themselves in the familiar terms of the coherent liberal subject, destined for personhood in literature and law by witnessing their own subjugation, but in their nuanced portrayals in their writing and interviews of conditions and individuals they encountered at Guantánamo. In other words, it is their outward rather than inward or psychoanalytic focus that illuminates dynamic subject positions in the spaces, places, and times between abstract legal personhood and bare life.

Declarations of national emergency It is not surprising that the attacks of September 11, 2001 resulted in the “Declaration of National Emergency by Reason of Certain Terrorist Attacks” three days later. The proclamation authorized the executive branch to exceed stipulated military strength limitations, to call up reserves, and to expedite appropriations in response to the sudden and unconventional attack on the United States, as well as to defend against the “continuing and immediate threat of further attacks.”3 However, this Proclamation, renewed every year on its September 14 anniversary by subsequent presidents, has also

Exception as alibi  73 contributed to a rhetorical, legal, and political slide from temporary national emergency to permanent legal exception that has enhanced the power of the executive branch to erode due process, the rights of citizenship, and the separation of powers, as well as to violate international and national norms and laws. The Bush Administration’s use of Guantánamo as both prison and, within it, black site,4 provides a locus through which to analyze those erosions and their legacy. Given that the principle of national emergency is grounded in the suddenness and temporariness of a threat to the nation, the reauthorization of the 2001 Declaration for 19  years and counting—​as well as the 40 men still languishing in indefinite detention at Guantánamo at the time of this writing—​suggest that the Declaration may now serve other purposes. Because Agamben’s theory of the state of exception both turns to and has been invoked so readily to describe the Bush Administration’s response to the horrific September 11 attacks, his work in this area also warrants further examination. I begin with the slippage in Agamben’s work from the state of emergency to the state of exception, a shift he attributes, in part, to variances of translation of the concepts across different languages, but one that also resonates in his primary example. For Agamben, the Military Order of November 13, 2001, empowering military commissions and sidelining the courts, forms the cornerstone of his argument about the state of exception. The Military Order gave the Secretary of Defense authority to “take all necessary measures” to “identify” suspected terrorists, “disrupt their activities,” “eliminate their ability” to cause harm, and prosecute any charges in military tribunals. In a clear indication that this national order claimed global jurisdiction, it also stipulated that anyone under its purview could not seek redress in any state or national court or international tribunal. The sweep and implications of the authority granted to the Secretary of Defense are staggering; indeed, it is difficult to see how the charge to “identify” and “eliminate” suspected sources of potential harm outside of judicial review could not be abusive. Although the Military Order assigned to the Secretary of Defense the power to transfer detainees to other “government authority or control,” their fates remained tied to Department of Defense (DOD) decision-​making without access either to the judicial branch or to international legal forums to contest the designations and processes that the order called into being.5 Agamben focuses his analysis on how the Military Order rendered detainees subject to DOD determinations, rules, and procedures without access to legal standing or a temporal framework beyond that determined by the captor: What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of the POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according

74  Alexandra S. Moore to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight.6 However, as Derek Gregory points out, the attempt to deny detainees legal personhood was formulated in spatial and corporeal terms in the early years at Guantánamo, each of which was anchored in law: Guantánamo Bay depends on the mobilization of two contradictory legal geographies, one that places the prison outside the United States to allow the indefinite detention of its captives, and another that places the prison within the United States in order to permit their ‘coercive interrogation.’7 Guantánamo is exemplary in understanding the administration’s policies in the War on Terror because its liminal status allowed for legal paradox and invention. Cuban territory under U.S.  military control, the Guantánamo naval base and detention center make possible the operationalization of the Military Order of November 13, 2001 precisely because its status confounds clear arguments about ultimate jurisdiction. Gregory’s summary makes clear what Agamben forecloses: that the detention center at Guantánamo resulted from paradoxical legal geographies rather than the suspension of law. While he calls out the abuse of executive power in claiming global jurisdiction and sidelining judicial processes, Agamben’s analysis elides the role of the Torture Memos (produced by various legal counsels in the executive branch) and subsequent legal instruments to fortify what David Luban describes as “hyper-​aggressive legal positions designed to maximize presidential power over the detainees and minimize their rights and recourse.”8 Rather than view the Military Order as an exceptional suspension of law in favor of military power, it might more productively be considered within a constellation, first, of legal and policy decisions orchestrated to give the administration wide latitude in producing, identifying, transferring, interrogating, abusing, holding, and reviewing detainees (a history traced by Gregory, Greenberg, and Dratel, Luban, and others), and, second, of a longer international history of legalized abuse targeting those deemed “other” to imperial interests. The broader view summarized here focuses on the role of international law, and IHL more specifically, in maintaining a system of “differential rule.”9 Although Agamben aims to develop a theoretical concept rather than to produce a history of the state of emergency/​exception, he references multiple historical contexts for his figure of bare life—​the status of those abandoned and deemed disposable by law and politics. He also traces the power to declare a national emergency, and, thus, make way for orders such as that of November 13, 2001, through a brief review of military crises and their constitutional contexts in Western Europe (France, Germany, Switzerland, Italy, and England) and the United States, from the French Revolution through

Exception as alibi  75 World War II. Agamben’s examples emphasize the ways in which the codified power to declare a national emergency can initiate the transformation of the emergency into the rule, a possibility further realized after 9/​11 when Bush attempted “to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible” in the War on Terror.10 That situation continues in the regular reauthorizations of the state of emergency. However, as Gregory points out, the examples used to inform Agamben’s reading of 9/​ 11 largely ignore histories of colonial contexts in which “emergency” became just one of many tactics of violent rule and sites of conflict (see, for example, Hussain). In addition, Agamben’s examples focus on single-​state decisions in times of war, whereas Bush’s 2001 declarations are decidedly transnational in scope and required the cooperation of countries around the world for their execution.11 In other words, while Agamben identifies other instances of national emergency and legal precaritization and then abandonment, he ignores key factors that complicate those analogies. On one level, the annual reauthorizations of the national emergency first declared in 2001 (as well as subsequent U.S. legal efforts to back-​date the emergency to begin in the late 1990s in order to facilitate the ongoing detention and possible prosecution of detainees with potentially older links to al Qaeda) seem to confirm Agamben’s thesis that emergency/​exception becomes the norm. Nonetheless, Agamben’s thesis neglects the longer history of differentiation imbricated in the development of international law and IHL more particularly. That history provides another entry point into the “legal geo-​graphing”12 that informs the post-​9/​11 state of exception. Bush alludes briefly to those longer histories in his Directive on the Treatment of Detainees, in which he resolves the internal debate between the Departments of Justice and Defense, on one hand, and State, on the other, by declaring that “none of the provisions of Geneva apply to our conflict with al Qaeda.”13 His decision, based upon the Department of Justice’s Torture Memos, concludes that this new thinking “should be consistent with the principles of Geneva,” although he has already determined those principles do not legally apply. He declares: “Our values as a Nation, values we share with other nations around the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment.”14 As Belinda Walzer and I have argued elsewhere, Bush pledges support for the spirit of the law, but not the law itself, thereby reversing the logic presented by the Department of Justice in its memos (that Geneva only applies to state parties and, therefore, members of al Qaeda are excluded from its protections).15 Whereas that department reads international humanitarian law narrowly to apply only to nation-​states, divorced from its larger impulse toward protection from harm, the President emphasized its guiding spirit as sufficient unto itself and, thus, a rationale for ignoring the Geneva Convention’s legal force. Here it is worth considering the relationship of Bush’s memo to the Martens Clause as an example of the tensions that existed within IHL long

76  Alexandra S. Moore before the Torture Memos. Initially added to the Preamble of the 1899 Hague Convention (II), and then restated in the Geneva Conventions of 1949 and again in the 1977 Protocols, the Martens Clause aims to reassert the norms undergirding IHL and, more particularly, to extend its principles among civilians and combatants who might be affected by or engaged in irregular conflicts not explicitly covered by a given treaty. In effect, it reiterates the importance of the ethical principles informing laws of armed conflict and of customary law beyond the specific treaty norms. The Clause stipulates that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of public conscience.16 That turn to underlying principles and shared values echoes in the President’s directive, although Bush expresses his support for principles at the expense of the law. In both texts, Martens and Bush understand their commitments to legal protections as a dividing line between “civilized nations” and its others. Race and other forms of othering are constitutive of these divisions coded by the language of civilization, and they have a long history in the development of international law. Lest the rhetoric of “civilized nations” and natural law (in “laws of humanity”) seem simply to be outmoded figures of speech, Frédéric Mégret reminds readers that the author of the Martens Clause, Friedrich de Martens, clearly articulated his support for British and Russian colonial power over “semi-​savage and barbaric nations.”17 Bush’s statement—​ “Our values as a Nation, values we share with other nations around the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment”—​then, does not espouse an expansive, non-​Eurocentric reading of the Martens Clause in the face of irruption (as a historical break) and emergency so much as situate itself within international law’s sedimented history in imperial formations. Placed in context with the Bush memo’s intervention in the legal debate at the time over the status of detainees, the phrase “Our values … call for us” invokes moral choice rather than legal obligation. Furthermore, the last part of the sentence about legal entitlement (“those who are not legally entitled to such treatment”) references the distinction between the abstract human being and the personhood necessary for human rights claims. Between these qualifying bookends about values and those recognized by the law, the use of “humane” (“call for us to treat detainees humanely”) echoes IHL and other international laws’ historical distinctions between “civilized” and “other” as well as the slide between human rights and humane treatment, which need not apply to humans at all (for example, the Humane Society in the United States is an animal protection organization). In other words, Bush’s rhetoric rehearses a familiar hierarchy of human beings as well as the paradoxical split

Exception as alibi  77 between humans and legal persons that lies at the heart of normative human rights. In his analysis of the “making of international law,” Antony Anghie traces the origin of international law writ large to sixteenth-​century Spanish colonial encounters, arguing that “international law … did not precede and thereby effortlessly resolve the problem of Spanish-​Indian relations; rather international law was created out of the unique issues generated by the encounter between the Spanish and the Indians.”18 In subsequent chapters, he traces how international law, grounded in theories of sovereignty and property ownership, developed in partnership with different European empires to facilitate the legal management of colonial peoples—​defined as “uncivilized,” other, and unknowable—​ and the expropriation of their resources. Increasingly abstracted as universal, international law’s racialized underpinnings resonated in the structures of the League of Nations and then the UN, although the language used to describe those against whom the law defined itself shifted in the twentieth century from the language of “civilization” to “development.” Anghie’s history does not address in great detail the differences among European approaches to race and rights; colonial powers’ use of extermination in addition to law; or the multitude of different legal positions occupied by, as well as forms of resistance and contestation enacted by, colonized peoples. Nonetheless, it points to legal adaptations in colonial and neo-​ colonial contexts that protect imperial sovereign interests (and eventually those of multinationals) over colonized peoples and postcolonial states.19 On the one hand, as Bush’s statement makes clear, each declaration or memo promises less to up-​end the law and operate in a zone of moral indistinction than to justify itself through what Mégret describes as an “almost legalistic interpretation of the law.”20 On the other hand, despite Bush’s claim, such legalistic interpretations are not new, but rather harken back to international law’s imperialist history. This kind of legalistic reasoning is highly visible in the Torture Memos. We can, for instance, trace the careful parsing of legal definitions, including an attempt to redefine torture from “severe physical and mental pain” to pain (inflicted with the intent to torture) equivalent to that of organ failure or death and that has a long-​term effect. The result of such redefinition renders torture virtually impossible to prosecute: even if one could measure the pain of organ failure or dying, there could be no immediate prosecution for violation of statutes against torture. Mégret examines the development of IHL during the nineteenth century into the first decades of the twentieth century to argue that “the laws of war, from their inception, were subtly designed to exclude non-​European peoples from their protection” by means of what he calls an “anthropology of savagery.”21 As his title, “From ‘Savages’ to ‘Unlawful Combatants’ ” indicates, Mégret reads decisions such as that offered by President Bush in his memo cited above as a continuation of the longstanding juridical-​political view, grounded in the principle of reciprocity, that “the laws of war did not

78  Alexandra S. Moore apply to non-​European peoples” because, being already determined by the laws’ authors to be “uncivilized” or “savage,” non-​Europeans could not be expected to reciprocate adherence to those laws.22 “Asymmetrical” warfare, then, when read against the history of IHL, invokes its founding rationale of reciprocity on terms predetermined by colonial powers rather than through the ethos of universalism that predominated in human rights discourse after World War II. Echoes of that early logic resonate in Torture Memo authors Deputy Attorney General John Yoo and James C. Ho’s argument that “even if al Qaeda were a nation-​state and a party to the Geneva Conventions, its members would still qualify as illegal belligerents due to their very conduct” (emphasis added).23 Divorcing “belligerent” conduct from its contexts constructs these new “others” outside the law just as their precedents, colonial subjects, had been in earlier eras. Laleh Khalili, writing specifically about the path from European colonialism to the close relationship between American and Israeli counterinsurgency and confinement practices, details the legal and procedural development of violent detention as a strategy for “the extraction of information, acquisition of hostages … and spectacular performances of sovereign power.”24 In Mohamedou Ould Slahi’s Guantánamo Diary, the only published memoir written while its author was imprisoned at Guantánamo, readers can witness how those performances, sometimes spectacular, sometimes covert, and no less dramatic for having been routinized by standard operating procedures, construct racialized targets who are always already guilty by virtue of embodied subjectivity and ostensible “innate disposition.”25 Slahi, for instance, is told by one of his guards: “Just looking at you in an orange suit, chains, and being Muslim and Arabic is enough to convict you.”26 Such comments on the ground, so to speak, echo Yoo’s legalistic argument about the inherent otherness of detainees, even as the guard erases distinctions between the (problematic) categories used to define (“being Muslim and Arabic”) and produce (“in an orange suit, chains”) the prisoner. Both are naturalized into a position of always already guilty, even if no charges have been brought against him. That the captive is ostensibly, self-​evidently, already guilty after having been othered in racial and religious terms opens him up to additional corporeal abuse. As Slahi recounts in an early passage of the memoir, after his secret rendition at the request of the U.S. government from his home in Mauritania to eight months of abusive captivity in Jordan and then to Afghanistan, he finds himself clearly in U.S. custody: “What terrorist organization are you part of ?” “None,” I replied. “You’re not a man, and you don’t deserve respect. Kneel, cross your hands, and put them behind your neck.” …

Exception as alibi  79 “You’re gonna be sent to a U.S.  facility, where you’ll spend the rest of your life … You’ll never see your family again … In American jails, terrorists like you get raped by multiple men at the same time. The guards in my country do their job very well, but being raped is inevitable.”27 The threat of rape is presented as “inevitable” as Slahi’s “innate disposition,” avoidable only by the production of “actionable intelligence,” which itself would only serve to reconfirm his status as a terrorist and thus provide retroactively an implicit justification of abuse. Slahi’s treatment underscores that President Bush’s rhetorical but not legal commitment to the protection of human rights masks the juridical production of inhumanity, not in the sense of dehumanizing Guantánamo detainees or casting them outside the law, but rather legalizing their abuse by deeming unlawful not only their conduct but also their intrinsic status (in this case as Arab Muslim). In this reading, the law becomes an instrument for the production and management of racial and cultural difference. The larger historical context of exception also has a temporal dimension in that it countermands the arguments of exigency and exceptionalism that mask the longstanding role the Guantánamo Bay naval base has played as a gatekeeper of U.S.  imperial interests, and would deny the socio-​political and legal subjecthood of detainees. Although familiar images of the first Guantánamo detainees—​shackled and wearing blackout goggles, earmuffs, masks, and jumpsuits—​in the steel cages seem to reinforce that narrative of immediacy and the temporary, Slahi’s conceptualization of his status continually references longer histories of racialized geopolitical exploitation. He forcefully condemns Mauritania for betraying its own legal sovereignty at U.S. behest by handing over one of its citizens without charge or legal process28 and invokes the history of the Atlantic slave trade as analogous to his own forced journey from West Africa to the Caribbean. Such passages in the book shift the rhetorical frame: from the “clash of civilizations,” culminating on 9/​11 in a state of emergency/​exception necessary to protect what Jasbir Puar calls the “liberal regime of multicultural heteronormativity intrinsic to U.S. patriotism,”29 to the long U.S. history of legalized, imperializing, racial exploitation. Slahi’s statements demonstrate, again and again, his recognition of and response to the ways the U.S.  government uses the “imagined power of Islamists functions to disappear the historical violence of Empire, as the continuity of practices that date to racial slavery and to the eradication of Native Americans is erased.”30 Slahi continually offers alternative historical frameworks and perspectives to illuminate what the dominant rhetoric of “with us or against us,” “civilized” versus “savage” seeks to elide. For Agamben, the detainees’ lack of legal grounding, of personhood, at once confirms “the camp” as the paradigmatic modern state of ­exception, one that could only “possibly be compared [to] the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every

80  Alexandra S. Moore legal identity, but, at least, retained their identity as Jews.” He goes on to reference Judith Butler’s work to argue that “in the detainees at Guantánamo, bare life reaches its maximum indeterminacy.”31 Although Agamben’s formulation underscores the legal plight of detainees in the War on Terror (their precaritization and lack of grievability, in Butler’s terms), it also raises questions concerning the full implications of his analogy. If War on Terror detainees are analogous to Jews in the camps in terms of their legal rightslessness, how does this comparison extend to the issue of identity? If Jewish victims of the Nazi concentration camps “at least, retained their identity as Jews,” what identity, if any, do detainees retain: the one determined by the U.S. government, outside of judicial process, to be that of a “terrorist”? Or simply the self-​referential title of detainee? Or does it refer to the one attribute prisoners of different backgrounds, ethnicities, languages, and citizenship seem to share: their Muslim faith? How do we understand the indistinction in Agamben’s work of distance between these identitarian terms and bare life, between the differential access detainees had to legal standing, depending on their nationality and access to legal representation, and between their understandings of their own subject positions and bare life? The state of exception in this context describes not the suspension of law in name of the law, nor a “ban” through which one is “abandoned” by law, as Agamben writes in Homo Sacer.32 Instead, it refers to the production of particular categories of subjects who are denied access to certain legal protections in the name of both sovereign and disciplinary state power. Historically and in the present moment, race and racialized religion are constitutive of these categories. Unwittingly or not, for Agamben the figure of the “Muselmann” in Remnants of Auschwitz and the Muslim Guantánamo detainee in State of Exception both come to epitomize bare life. Whereas Agamben reads Jewishness as constitutive of an identity that survives law’s abandonment, his use of the category “Muslim” seems metaphorical (symbolizing absence and abjection), rather than substantive and generative. Although Agamben’s turn to the figure of the detainee effectively highlights the “affect of exception,”33 it does so by emptying that figure of historical, geopolitical, and religious specificity; it ignores the ongoing struggles between the executive branch, the judiciary, and the Congress over the forms of legal personhood a detainee might inhabit; and it relegates the prisoner experience of Guantánamo solely as “living death,”34 devoid of other meaning. In their work, Guantánamo detainees offer an important point to Agamben’s portrayal of the emptiness of bare life. Perhaps unexpectedly, they do so by frequently turning away from affect in order to focus instead on how they are situated amidst competing hierarchies, legal claims, national interests, geographies, temporalities, standard operating procedures, personalities, and cultures. Slahi, for instance, frequently deflects attention from the details of his own suffering, thereby refusing to participate in his own objectification as well as in the prurient allure the torture chamber might hold for readers. “I am saving you here from the quoting the disgusting and degrading

Exception as alibi  81 talk I had to listen to,” he tells readers in the midst of recounting some of the worst treatment he experienced.35 “Did I pass out? Maybe not,” he comments later regarding another torture session.36 Such refusals to tell not only allow him to reclaim his narrative from the ones his torturers force him to produce, they also clear a space in which other kinds of stories and subject positions, such as those noted below, can emerge.

Rethinking subjecthood in the state of exception In her trenchant analysis of Agamben’s concepts of bare life and the threshold, Angela Naimou writes: Bare life becomes the lower and upper threshold of modern political life: the minimum existence barely distinguished from death is also what makes the extreme limit of modern politics visible. Biologically, anything less than bare life means death; but also, anything less extreme than bare life is not as important to Agamben’s thought.37 Naimou continues that, rather than remaining caught within their binary opposition, “[w]‌hat lies between the ideal citizen and bare life, is an enormous range of particular legal identities” as well as other forms of self-​ conception.38 I am thinking, for instance, of the range of positions held by current detainees—​including those facing charges, held without charge in indefinite detention, or cleared for release but not transferred, and those with and without legal representation. Notable, too, is former Guantánamo detainee Mansoor Adayfi’s comment in a recent essay, in which he warns against reductive readings of his experiences: Guantánamo wasn’t just about torture and abuse. There was something bigger … there. It was life. There was life, love, good moments, bad moments, sad moments, happy moments. Everything was there.39 As noted above, when Agamben invokes the Guantánamo detainees to epitomize bare life, he references Judith Butler, whose theory of subjectivity, its power and complexity notwithstanding, lends itself to his conception of the possibility of disposable, abject life. Speaking specifically about the Guantánamo poets, for example, Butler writes that their “lives do not count as the kind of ‘human lives’ protected by human rights discourse,”40 although their poems—​some of which were originally scratched on disposable cups and circulated among detainees, while others have been destroyed or censored—​function as “appeals” written from the “limits of grief, humiliation, longing, and rage.”41 The poets’ expressions from the liminality of bare life function for Butler as appeals for recognition and thereby signify the possibility of subjectivity, of “grievable life.” In keeping with her theory of subjectivity as grounded in conditions of subordination and/​as subjectification

82  Alexandra S. Moore (of subjectivity borne out of a process of recognition within prevailing social norms), she describes the corporeal and mental suffering in Guantánamo as a condition of the poems that express such suffering and for the responsiveness they may engender “through formulations of affect, understood as a radical act of interpretation in the face of unwilled subjugation.”42 Although her argument draws attention to the poets’ commitments as well as the poems’ potential to outlive their authors (and her argument should be read in the context of her extended work on the iterative process of recognition), it, nonetheless, depends on a circumscribed conception of subjectivity itself as constructed between self and other, the recognizer and the would-​be recognized. Writing partially in response to Butler, Kelly Oliver has offered a model of subjectivity founded through the possibility of witnessing and, what she terms, response-​ability. Rather than subjectivity resulting from a process of positive, external recognition (a process that seems to prepare the ground for the sovereign power to deny recognition or to relegate one to bare life, particularly in the state of exception), Oliver foregrounds dynamic, inter-​relational witnessing at the heart of subjectivity:  “subjectivity requires the possibility of a witness, and the witnessing at the heart of subjectivity brings with it responsibility; response-​ability; and ethical responsibility.”43 In subjects’ capacity to bear witness (however incomplete) to themselves and in the response that witnessing demands, Oliver finds the potential for an ethical relationship freed from the hierarchical delimitations of self and other: “The double-​ meaning of witnessing, as both eyewitness testimony based on firsthand knowledge and testifying to something beyond recognition that cannot be seen, is at the center of subjectivity,” she writes. And the “tension” between those two meanings situates the subject historically as well as in an ethical relationship with others, establishing what she describes as “infinitely response-​able subjectivity.”44 Response-​ability here exceeds the terms of recognition by encompassing the infinite ethical responsibility to respond to one another: “response … is obligated by our very subjectivity. We are by virtue of our relations with others.”45 Read in the context of Oliver’s work, the writings of detainees are significant not simply because they are the expressions or appeals of subjects demanding/​begging/​seeking recognition, but because they are the medium through which dynamic witnessing and the ethical responsibility take place. Ethical response-​ability includes readers’ responsibility to respond even to what exceeds the conditions of recognition that attends witnessing. Oliver defines multiple paradoxes of witnessing one’s own oppression that have bearing on detainees’ writing: witnessing is at once integral to subjectivity, yet it also discloses the testifier’s painful objectification; witnessing, as Agamben has also argued,46 is always necessarily incomplete, thereby undermining recognition; and the credibility of the witness is often undermined by their liminality and precarity, the very conditions to which the witness testifies.47 These paradoxes notwithstanding, there is another dimension of witnessing Oliver does not fully explore, but one that makes possible an

Exception as alibi  83 understanding of Guantánamo detainees as occupying much more nuanced, complexly situated positionalities than featureless bare life. Rather than understand detainees’ writings as expressions of an “I” desperately seeking the recognition necessary to rescue it from abjection or foreclosure, we might read their work for the ways in which it documents their interrelationship with and responsiveness to fellow detainees, guards, interrogators, medical personnel, staff psychologists, and so forth. In other words, detainees’ capacity to be response-​able to those around them, to reflect not just their own suffering but their situatedness, informs their own subject positions and that of those they document. Even prisoner representations of torture, abuse, and rightslessness remind us that bare life is a political category imposed upon subjects, rather than a description of who those subjects have become. Reading along these lines reorients attention from the psychoanalytically informed models of subjectivity Butler and Oliver present to the biopolitical terms of Agamben’s analysis which we might trace through the situatedness of subjecthood. Adayfi and Slahi’s work occupies the multivalent, albeit precarious space between abjection and full legal personhood. In doing so, it reveals prisoner subjecthood to be emplaced, dynamic, interrelational, and, as Naimou points out, makes it “impossible to embrace legal personhood as the aim and end goal of movements for political change.”48 In Guantánamo Diary, for example, Slahi emerges as a distinctive subject not simply through the qualities of his own voice, but more importantly for the argument here, in his characterization of his own embeddedness within a matrix of personalities, hierarchies, histories, and cultures. He consistently conveys nuances in the international perspectives of different Arab governments, ethnic groups, and Muslim identities, refuting through his differentiated descriptions of those around him the ostensible homogeneity of “Arab Muslim,” which has been imposed upon him. Moreover, his ability to read both individual and cultural differences extends to his portrayals of his various guards and interrogators and his imagination of various readers. He imagines what “the dead average American [would] think if he or she could see what his or her government is doing to someone who has done no crimes against anybody.”49 He dismantles the Bush Administration’s dualistic rhetoric of us and them, civilized and savage, through observations regarding the racial hierarchies among guards and other prison staff, the varied religious and political beliefs and ideologies of U.S. military service members and intelligence personnel he encounters, differences in the education levels of his captors, and, perhaps most remarkably, through the lasting friendship he has formed with one of his guards.50 In a remarkable section of the book, Slahi writes of his adjustment to life at Guantánamo, three years into what would become a 14-​year captivity. After documenting the first two phases of denial and then acceptance, he says, “Phase three is discovering your new home and family”: “Your family comprises the guards and your interrogators. True, you didn’t choose this family, nor did you grow up with it, but it’s family all the same, whether you

84  Alexandra S. Moore like it or not, with all the advantages and disadvantages.”51 The passage reflects the paradoxes Oliver identifies—​of striving to find an analogy to make an experience that is impossible to convey fully become legible to others—​while also demonstrating the terms through which Slahi constructs a social matrix for himself within the very context designed to destroy him as a social being. Thus, it is his ability to respond to those around him as at once individuals and members of different groups that reflects his own multi-​faceted identity and navigation of his time at Guantánamo. If indefinite detention without charge and torture aim to create the conditions of “living death” in the camp or what the purveyors of the euphemistically named enhanced interrogation techniques termed “learned helplessness,” then witnessing the specificities of those humans around you—​their complex socio-​political, cultural, and institutional identities as well as their quirks, beliefs, abuses, and kindnesses, even when they are your “enemy”—​ might reconstitute that social web, a web in which both detainee and prison personnel’s subjectivities are mutually constituted. In a recent interview, Adayfi underscores this point in describing what he terms “Guantánamo culture”—​the syncretism of a “chemical reaction” produced by colliding linguistic, ethnic, religious, and cultural elements: We created our own culture at Guantánamo: the language, the behavior, the dancing, the singing, the poetry, everything … [We were] all kinds of people: different mentalities, different ways of thinking, different ways of approaching things. So [we] started sharing cultures, conditions, stories, and so on. I am a Yemeni from a tribal culture. Give me someone from Saudi [Arabia], and we will have some cultural differences we can cross. But when you start sharing events, sharing behaviors with each other—​ some are talking in Pashto, saying “good morning” and “how are you?” and some in Farsi, in Urdu, in English—​everything evolves. [Regarding] the dancing, it’s same thing. You can find something we call Guantánamo dance. It’s a mix of all [our different cultures] … It is crazy. And this is just improvised and for the sake of fun, because we developed a sense of humor. That’s what kept us alive there.52 Adayfi has said repeatedly that prisoners didn’t survive, but only managed to stay alive, a differentiation that resonates with the concept of bare life.53 However, as Adayfi’s depiction of life inside Guantánamo makes clear, even staying alive was infused with meaning and meaning-​making unbound from the sole provisions of legal personhood. Rather than civilized nations versus terrorists, fully empowered citizens or bare life, the rule of law or its exception, detainee writings such as Adayfi’s and Slahi’s map a much more complex socio-​political life that is firmly situated in social, historical, and material contexts. As is evidenced by Adayfi’s description of Guantánamo culture or Slahi’s lasting friendship with his former guard, Steve Wood, that social web has its own temporalities, from the phases

Exception as alibi  85 of adjustment within Guantánamo to ties that exceed the duration of Wood’s military service or Slahi’s captivity. Meanwhile, the temporality of emergency and exception persists.

Notes 1 107th United States Congress, Public Law 107–​ 40, Joint Resolution on the Authorization for Use of Military Force, 115 Stat. 224 (September 18, 2001). 2 50 USC §1701, War and National Defense:  Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities, December 28, 1977. See also Karen J.  Greenberg and Joshua L.  Dratel, “Guantánamo’s Indelible Legacy,” Mondoweiss:  News & Opinion about Palestine, Israel, and the United States, January 20, 2020 (originally published by TomDispatch, January 19, 2020) and George W. Bush, Directive on the Treatment of Detainees (February 7, 2002). 3 George W.  Bush, Declaration of National Emergency by Reason of Certain Terrorist Attacks. Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001). 4 Guantánamo operated as both detention center and black site within the larger Rendition, Detention, and Interrogation program, which operated from 2001 until it was suspended by President Obama’s Executive Order 13491 in 2009. 5 The power to hold and transfer detainees registers as both significant and ambiguous given the CIA’s lead role in the Rendition, Detention, and Interrogation (RDI) program, initiated by a secret memorandum of notification two months earlier on September 17, 2001. This memorandum established the CIA’s unprecedented authority to seize and detain suspected terrorists anywhere in the world and, soon thereafter, to establish the network of ten black sites in operation from 2002 to 2009. 6 Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), 3. 7 Derek Gregory, “The Black Flag: Guantánamo Bay and the Space of Exception,” Geografiska Annaler 88B, no. 4 (2006): 405. 8 David Luban, Torture, Power, and Law (Cambridge: Cambridge University Press, 2014), 4. 9 Ariella Aïsha Azoulay, Potential History: Unlearning Imperialism (New York: Verso, 2019), 36. 10 Agamben, State of Exception, 22. 11 Derek Gregory, “The Black Flag: Guantánamo Bay and the Space of Exception,” 407. 12 Ibid., 416. 13 George W. Bush, Directive on the Treatment of Detainees (February 7, 2002). 14 Ibid. 15 Alexandra S. Moore and Belinda Walzer, “Precaritization in the Security State: Ambient Akairos in Mohamedou Ould Slahi’s Guantánamo Diary,” in Precarious Rhetorics, eds. Wendy S. Hesford, Adela C. Licona, and Christa Teston (Columbus: Ohio State University Press, 2018), 27. 16 Convention with Respect to the Laws and Customs of War on Land (The Hague Convention), 1899. See also, Second Additional Protocol to the Geneva Conventions (1977).

86  Alexandra S. Moore 17 Friedrich de Martens, “La Russie et l’Angleterre dans Asie Centrale,” Revue de droit international et de la legislation camparée 227 (1879), 233, quoted in Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’:  A Postcolonial Look at International Humanitarian Law’s ‘Other,’ ” in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006), 274. 18 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005), 322. 19 For more site-​ specific analyses of the role of international law and international humanitarian law in European colonial encounters, see, for example, Siba N’Zatioula Grovogui, Sovereigns, Quasi-​ Sovereigns, and Africans:  Race and Self-​ Determination in International Law (Philadelphia:  University of Pennsylvania Press, 1996); Fabian Klose, Human Rights in the Shadow of Colonial Violence. The Wars of Independence in Kenya and Algeria, trans. Dona Geyer (Philadelphia:  University of Pennsylvania Press, 2013); Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003); and Laleh Khalili, Time in the Shadows: Confinement in Counterinsurgency (Stanford, CA: Stanford University Press, 2012). 20 Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants,’ ” 302. 21 Ibid., 268. 22 Ibid., 278. 23 John Yoo and James C. Ho, “The Status of Terrorists,” University of California, Berkeley, Public Law and Legal Theory Research Paper Series, Research Paper No. 136 (2003), 11, quoted in Mégret, “From ‘Savages’ to ‘Unlawful Combatants,’ ” 299. 24 Laleh Khalili, Time in the Shadows, 142. 25 Colin Dayan, The Story of Cruel and Unusual (Cambridge, MA:  MIT Press, 2007),  54–​56. 26 Mohamedou Ould Slahi, Guantánamo Diary, ed. Larry Siems (New York: Little, Brown and Company, 2015), 220. 27 Ibid., 18. 28 Ibid., 126, 129. 29 Jasbir K. Puar, “On Torture: Abu Ghraib,” Radical History Review 93 (October 2005): 14. 30 Sadia Abbas, At Freedom’s Limit:  Islam and the Postcolonial Predicament (New York: Fordham University Press, 2014), 3. 31 Agamben, State of Exception, 4. 32 Agamben, Homo Sacer:  Sovereign Power and Bare Life, trans. Daniel Heller-​ Roazen (Stanford, CA: Stanford University Press, 1998), 28. 33 Fleur Johns, “Guantánamo Bay and the Annihilation of Exception,” European Journal of International Law 16 (2005), 629. 34 Angela Naimou, Salvage Work: U.S. and Caribbean Literatures and the Debris of Legal Personhood (New York: Fordham University Press, 2015), 32. 35 Slahi, Guantánamo Diary (2015), 230. 36 Ibid., 252. 37 Naimou, Salvage Work, 30. 38 Ibid., 33. 39 Mansoor Adayfi, “Did We Survive Torture?” in Witnessing Torture: Perspectives of Torture Survivors and Human Rights Workers, eds. Alexandra S.  Moore and Elizabeth Swanson (New York: Palgrave Macmillan, 2018), 236. 40 Judith Butler, Frames of War: When is Life Grievable? (New York: Verso, 2010), 58.

Exception as alibi  87 41 Butler, Frames of War, 59. For additional information on the Guantánamo poets, see Marc Falkoff, ed., Poems from Guantánamo:  The Detainees Speak (Iowa City: University of Iowa Press, 2007) and Marc Falkoff, “ ‘Where is the World to Save us from Torture?’: The Poets of Guantánamo,” in The Routledge Companion to Literature and Human Rights, eds. Sophia A.  McClennen and Alexandra S. Moore (New York: Routledge, 2015), 351–​360. 42 Butler, Frames of War, 61. 43 Kelly Oliver, Witnessing:  Beyond Recognition (Minneapolis:  University of Minnesota Press, 2001), 91. 44 Ibid., 105. 45 Ibid., 183. 46 Giorgio Agamben, Remnants of Auschwitz:  The Witness and the Archive, trans. Daniel Heller-​Roazen (New York: Zone Books, 2002). 47 Oliver, Witnessing, 99. 48 Naimou, Salvage Work, 211. 49 Slahi, Guantánamo Diary (2015), 257. 50 Ibid., 287. See also, for example, Lulu Garcia-​Navarro, Ned Wharton, and Clare Lombardo, “A Guantánamo Guard and His Detainee Reunite,” NPR Weekend Edition (August 12, 2018). 51 Slahi, Guantánamo Diary (2015), 315. 52 Personal interview with Mansoor Adayfi, April 6, 2020. 53 Ibid. See also, Adayfi, “Did We Survive Torture?,” 233.

Bibliography 50 USC §1701. War and National Defense:  Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities. December 28, 1977. 107th United States Congress. Public Law 107–​ 40. Joint Resolution on the Authorization for Use of Military Force. 115 Stat. 224. September 18, 2001. Abbas, Sadia. At Freedom’s Limit: Islam and the Postcolonial Predicament. New York: Fordham University Press, 2014. Adayfi, Mansoor. “Did We Survive Torture?” In Witnessing Torture: Perspectives of Torture Survivors and Human Rights Workers, edited by Alexandra S. Moore and Elizabeth Swanson, 231–​236. New York: Palgrave Macmillan, 2018. Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life, translated by Daniel Heller-​Roazen. Stanford, CA: Stanford University Press, 1998. Agamben, Giorgio. Remnants of Auschwitz: The Witness and the Archive, translated by Daniel Heller-​Roazen. New York: Zone Books, 2002. Agamben, Giorgio. State of Exception, translated by Kevin Attell. Chicago: University of Chicago Press, 2005. Anghie, Antony. Imperialism, Sovereignty, and the Making of International Law. Cambridge: Cambridge University Press, 2005. Azoulay, Ariella Aïsha. Potential History: Unlearning Imperialism. New York: Verso, 2019. Bush, George W. Declaration of National Emergency by Reason of Certain Terrorist Attacks. Proclamation No. 7463, 66 Fed. Reg. 48,199 (Sept. 14, 2001). Bush, George. Directive on the Treatment of Detainees (February 7, 2002). https://​ nsarchive2.gwu.edu/​NSAEBB/​NSAEBB127/​02.02.07.pdf.

88  Alexandra S. Moore Bush, George. Military Order of November 13, 2001. Detention, Treatment, and Trial of Certain Non-​Citizens in the War Against Terrorism. Federal Register: November 16, 2001 (Volume 66, Number 222). Butler, Judith. Frames of War: When is Life Grievable? New York: Verso, 2010 [2009]. Convention with Respect to the Laws and Customs of War on Land [The Hague Convention]. 1899. Dayan, Colin. The Story of Cruel and Unusual. Cambridge, MA: MIT Press, 2007. Falkoff, Marc, ed., Poems from Guantánamo:  The Detainees Speak. Iowa City: University of Iowa Press, 2007. Falkoff, Marc. “‘Where is the World to Save us from Torture?’:  The Poets of Guantánamo.” In The Routledge Companion to Literature and Human Rights, edited by Sophia A. McClennen and Alexandra S. Moore, 351–​360. New  York: Routledge, 2015. Garcia-​Navarro, Lulu, Ned Wharton, and Clare Lombardo, “A Guantánamo Guard and His Detainee Reunite,” NPR Weekend Edition (August 12, 2018). www. npr.org/ ​2 018/ ​0 8/ ​1 2/ ​6 37932193/ ​ a - ​g uantanamo- ​ g uard- ​a nd- ​ a - ​d etainee- ​reunite-​ in-​mauritania. Goyal, Yogita. “The Genres of Guantánamo Diary: Postcolonial Reading and the War on Terror.” Cambridge Journal of Postcolonial Literary Inquiry 4, no. 1, January 2017: 69–​87. Greenberg, Karen J., and Joshua L. Dratel. “Guantánamo’s Indelible Legacy.” Mondoweiss: News & Opinion about Palestine, Israel, and the United States. January 20, 2020 (originally published by TomDispatch, January 19, 2020). Greenberg, Karen J., and Joshua L. Dratel, eds. The Torture Papers: The Road to Abu Ghraib. Cambridge: Cambridge University Press, 2005. Gregory, Derek. “The Black Flag:  Guantánamo Bay and the Space of Exception.” Geografiska Annaler 88B, no. 4 (2006): 405–​427. Grovogui, Siba N’Zatioula. Sovereigns, Quasi-​ Sovereigns, and Africans:  Race and Self-​Determination in International Law. Philadelphia: University of Pennsylvania Press, 1996. Humphreys, Stephen. “Legalizing Lawlessness:  On Giorgio Agamben’s State of Exception.” European Journal of International Law 17, no. 3 (2006): 677–​687. Hussain, Nasser. The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor: University of Michigan Press, 2003. Johns, Fleur. “Guantánamo Bay and the Annihilation of Exception.” European Journal of International Law 16 (2005): 613–​635. Khalili, Laleh. Time in the Shadows:  Confinement in Counterinsurgency. Stanford, CA: Stanford University Press, 2012. Klose, Fabian. Human Rights in the Shadow of Colonial Violence. The Wars of Independence in Kenya and Algeria, translated by Dona Geyer. Philadelphia: University of Pennsylvania Press, 2013. Luban, David. Torture, Power, and Law. Cambridge:  Cambridge University Press, 2014. Mégret, Frédéric. “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other.’” In International Law and Its Others, edited by Anne Orford, 265–​317. Cambridge: Cambridge University Press, 2006. Moore, Alexandra S., and Belinda Walzer. “Precaritization in the Security State:  Ambient Akairos in Mohamedou Ould Slahi’s Guantánamo Diary.” In

Exception as alibi  89 Precarious Rhetorics, edited by Wendy S. Hesford, Adela C. Licona, and Christa Teston, 21–​40. Columbus: Ohio State University Press, 2018. Naimou, Angela. Salvage Work:  U.S.  and Caribbean Literatures and the Debris of Legal Personhood. New York: Fordham University Press, 2015. Oliver, Kelly. Witnessing: Beyond Recognition. Minneapolis: University of Minnesota Press, 2001. Paik, A. Naomi. Rightlessness:  Testimony and Redress in U.S. Prison Camps since World War II. Chapel Hill: University of North Carolina Press, 2016. Puar, Jasbir. “On Torture: Abu Ghraib.” Radical History Review 93 (October 2005): 13–​38. Slahi, Mohamedou Ould. Guantánamo Diary, edited by Larry Siems. New  York: Little, Brown and Company, 2015. Slahi, Mohamedou Ould. Guantánamo Diary. Restored Edition, edited by Larry Siems. Boston: Back Bay Books 2017.

4 Tactics of battle, strategies of state1 Hurricane Katrina and the counterterror exception Jennifer N. Ross

On September 2, 2005, Louisiana Governor Kathleen Blanco announced National Guard deployments into post-​ Hurricane Katrina New Orleans, emphasizing that “they [had] just returned from Iraq and will shoot to kill.”2 That same day, Brigadier General Gary Jones, commander of Louisiana’s Joint Task Force, stated: “This place is going to look like little Somalia … This will be a combat operation to get this city under control.”3 In the aftermath of Hurricane Katrina, various branches of the U.S. government, paramilitary actors, and the news media proved unable to conceive of the crisis outside a national security framework. Influenced by the logics of counterterrorism, these representatives of the post-​9/​11 “counterterror state” adopted rhetoric and strategies unique to the War on Terror to wage battle against what they viewed as a domestic insurgency in New Orleans. Discourses of “shock and awe” devastation and black “insurgents” framed the post-​Katrina disaster as requiring extreme measures, or more precisely, counterinsurgent militarization, to reach resolution.4 Most egregiously, the state rationalized the use of private security contractors (PSCs) and a Guantánamo Bay-​style detention facility—​ two of the most controversial tactics of the War on Terror—​against black “looters” and Arab and Muslim “terrorists.” Yet, despite the pervasive use of counterterror/​counterinsurgent military tactics and rhetoric, few scholarly works investigate how—​and to what effect—​state officials deployed these discourses, strategies, and policies during the flooding of New Orleans. Though disregarded by 9/​11 and counterterror scholarship, the Katrina disaster reveals a crucial juncture at which War on Terror discourse and policy overlapped with American racism and mass incarceration to normalize the post-​9/​11 state of exception and reassert white supremacy. This chapter theorizes Hurricane Katrina within a national security framework to reveal how attention to post-9/11 counterterrorism transformed a domestic humanitarian crisis into a veritable insurgency. The first section analyzes converging discourses of black criminality and counterterror/​ counterinsurgent warfare in the immediate aftermath of the storm. Though stemming from different anti-​black, anti-​Arab, and anti-​Muslim contexts, these discourses combined to frame Katrina survivors as violent criminals,

Tactics of battle, strategies of state  91 domestic insurgents, and even terrorists. Such discursive renderings directly influenced post-​storm policy and operations. The latter two sections put forward case studies detailing the use of PSCs and a Guantánamo Bay-​style detention facility in order to explore how counterterror and counterinsurgent strategies of warfare served in the protection of national security interests and the racial status quo. Ultimately, repositioning Katrina as a consequence of the post-​9/​11 state of exception reveals how the incorporation of counterterror discourses and tactics transformed New Orleans’s humanitarian disaster into what several post-​storm commentators termed “Baghdad on the Bayou.”5

Discourses of criminality and insurgency Following Hurricane Katrina, the unrestrained movement of black and brown peoples through New Orleans’s white-​coded spaces and centers of capital presented “images of besieged whiteness,” fueling calls for heavy securitization.6 In the early days after the storm, the news media played a vital role in characterizing whiteness as under siege. The New Orleans Times Picayune, which continued publishing throughout the storm and provided vital information on flooding, rescue efforts, and damage assessments, also tracked instances of looting and “lawlessness” throughout city.7 Writers describe circumstances in highly criminalizing terms, repeatedly referring to an “atmosphere of lawlessness,” “chaos,” and “bedlam” likened to that of “Sodom and Gomorrah.”8 In a number of reports, the Times Picayune details “mass looting,” “widespread looting,” and a “parade of looters” at specific sites across the city.9 “Overwhelmed,” law enforcement “stood by powerless against the tide of law breakers.”10 Perhaps the most well-​known example of racialized criminality occurred visually. Dave Martin, a photographer from the Associated Press captioned his image of a black man carrying a box of soda and a floating garbage bag with the following: “A young man walks through chest deep flood water after looting a grocery store in New Orleans on Tuesday, Aug. 30, 2005.”11 Chris Graythen, a Getty photographer, snapped a very similar photo for distribution through Agence France-​Press. In his image, a white couple wearing backpacks also float food items behind them. Yet, his caption describes the sight much differently:  “Two residents wade through chest-​deep water after finding bread and soda from a local grocery store.”12 The AP defended Martin’s caption, explaining that its photographers had been directed to describe an action as looting when they witnessed an individual enter a business and return with items. Speaking for himself, Graythen asserts that while he had seen the white couple near a store with an open door, he had not seen them enter it and drew the conclusion that they had salvaged the food from items that had floated out of the shop. The juxtaposition between Martin’s and Graythen’s photographs reveals a penchant for assuming white “innocence” and black “criminality.”

92  Jennifer N. Ross Unfettered black movement presented a threat to the racial status quo and the infrastructure of whiteness in part because whites have consistently associated blackness with criminality. In the white racial imaginary, blackness presents an “open-​ended threat potential” for crime, violence, and destruction of property.13 African American studies scholar and political scientist Naomi Murukawa cites President Harry S.  Truman’s 1946 Committee for Civil Rights as a foundational moment linking “ ‘the Negro problem’ with ‘the crime problem.’ ”14 Throughout the long Civil Rights movement, both opponents and supporters of civil rights advancements linked criminality to blackness and civil rights.15 However, even as the ideology of black criminality proliferated across political lines, the Civil Rights movement transformed, as Michelle Alexander puts it, “the rules of acceptable discourse,” and segregationists and civil rights opponents had to “distance themselves from an explicitly racist agenda. They developed instead the racially sanitized rhetoric of ‘cracking down on crime.’ ”16 Yet seemingly race-​neutral terms have been coded with racial bias. “Thug” and, most importantly in the post-​ Katrina context, “looter” convey presumptions of black male violence and criminality. While charges of looting and lawlessness criminalized black survivors in a domestic legal sense, the concurrent rhetoric of warfare and military action effectively positioned post-​storm New Orleans and hurricane survivors outside both the national imaginary and constitutional protection. Reincorporation of the city would require violent subjugation and the restoration of white systems of law and order. Soon after the storm, Colonel Joe Spraggins, Director of the Harrison County Emergency Management Agency, described Gulfport, Mississippi as “Nagasaki,” while Mississippi Governor Haley Barbour compared the coast to Hiroshima.17 Associations between the Gulf Coast and war zones were not limited to historical wars. On September 2, President George W. Bush explained, “It’s as if the entire Gulf Coast were obliterated by the worst weapon you could imagine.”18 In the context of the post-​9/​11 period, Bush refers not only to the atomic bomb, but also to the weapons of mass destruction the United States expected to find in Iraq. Ron Vaney, the director of Bay St. Louis’s Public Works department, went further, alluding to the opening salvos of the Iraq War when he referred to the destruction in Bay St. Louis, Mississippi, as “shock and awe.”19 That each of the referenced cities—​Nagasaki, Hiroshima, and Baghdad—​suffered horrific destruction not only provides a historical benchmark against which to measure the devastation of New Orleans, but also forges troubling parallels between foreign and domestic processes of racial dehumanization and imperial subjugation.20 Like Nagasaki, Hiroshima, and Baghdad, New Orleans experienced the force of militarized pacification as government officials equated black survivors with insurgents and sought means through which to federalize the disaster for full military operations. According to Nicholas Mirzoeff, a (now deleted) Army Times article from September 2, 2005 bluntly stated that “the National Guard would be combating ‘an insurgency in the city [of New

Tactics of battle, strategies of state  93 Orleans].’ ”21 David Addington, a counsel to Vice President Dick Cheney, “began invoking the specter of ‘insurgents,’ whose existence would permit the president to send in military force under the Insurrection Act.”22 With the shadow of insurgency haunting officials’ minds, Louisiana Governor Kathleen Blanco declared the shoot-​to-​kill order referenced at the beginning of this chapter, even as Brigadier General Gary Jones vowed to initiate active counterinsurgency operations. While the existence of a shoot-​to-​kill order has since been disputed, at the time the rhetoric served to further render black survivors as a disruptive and threatening insurgent force that needed to be quelled via the repressive arms of the counterterror state. By framing black survivors as insurgents, the state effectively expelled New Orleanians from the body politic and, in the context of the War on Terror, equated them with “unlawful combatants” on the battlefields of Afghanistan and Iraq. These survivors were left vulnerable to and indeed experienced the infringement of rights, unlawful detention, and military occupation. Rather than correct extreme criminalizing discourse, President Bush legitimized the drastic pronouncements by Governor Blanco, Brigadier General Jones, and others. In his September 15, 2005 speech from Jackson Square, the President stated, “We will do what it takes, we will stay as long as it takes to help citizens rebuild their communities and their lives.”23 In doing so, he referred to Hurricane Katrina with rhetoric mirroring his inauguration of the War on Terror. Four years earlier, on September 17, 2001, Bush affirmed, “We are putting together a coalition that is a coalition dedicated to declaring to the world we will do what it takes to find the terrorists, to rout them out and to hold them accountable.”24 Although understated in his correlation between black survivors and Islamist terrorists, Bush concluded his speech openly conflating Katrina and 9/​11 as matters of national security, as well as calling for large-​scale federal military involvement in disaster preparation and recovery in the future: Our cities must have clear and up-​to-​date plans for responding to natural disasters and disease outbreaks, or a terrorist attack; for evacuating large numbers of people in an emergency; and for providing the food, water, and security they would need … In a time of terror threats and weapons of mass destruction, the danger to our citizens reaches much wider than a fault line or flood plain. I consider detailed emergency planning to be a national security priority … It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forces, the institution of our government most capable of massive logistical operations on a moment’s notice.25 In the end, Bush’s Jackson Square speech subordinated Hurricane Katrina to September 11 and counterterror preparedness at the same time it reinforced rhetoric paralleling the majority black hurricane survivors with America’s terrorist enemies. Furthermore, it left open-​ended the strategies various levels

94  Jennifer N. Ross of government and law enforcement could utilize in pursuit of “doing what it takes” to ensure domestic and global order. While the discourses of war, insurgency, and crime succeeded in framing Katrina survivors as violent criminals and New Orleans as a war zone, Bush’s statements ultimately rationalized unconventional, highly militaristic, and legally questionable “rescue and recovery” efforts involving the use of private security contractors and indefinite detention.

Case study 1: counterinsurgent pacification and Blackwater USA The racializing and criminalizing logics of post-​9/​11 counterterrorism and counterinsurgency addressed white race panic arising after Hurricane Katrina with ruthless efficiency. Military and paramilitary representatives of the counterterror state joined law enforcement in the struggle to reinstate law and order, thus conflating domestic policing with military invasion and occupation. Additionally, paramilitary actors hunted for Al Qaeda terrorists seeking to exploit Katrina’s chaos. In their search, the counterterror state leveraged some of the most controversial tactics adopted for the War on Terror, specifically the use of Blackwater USA and other private security contractors (PSCs) as first responders and law enforcement, and Camp Greyhound, a Guantánamo Bay-​style detention facility to house “looters” and “trespassers” in downtown New Orleans. These two facets of disaster response reveal how the distinction between domestic policing and counterinsurgency tactics collapsed, leaving racialized and criminalized American citizens at the mercy of systems designed around racist ideologies and military securitization. Blackwater USA was a military, intelligence, and security firm founded in 1996 by Al Clark, a Navy firearms specialist, and Erik Prince, a former Navy SEAL, multi-​millionaire, and extreme right-​wing Christian from Holland, Michigan.26 Originally, the Moyock, North Carolina-​based company provided security and weapons training to local and federal law enforcement officials, U.S.  special forces, and foreign governments such as Spain and Brazil. However, with the September 11 attacks and the War on Terror, Blackwater quickly expanded its services into the “private military” realm, offering services from “high-​ value asset security” to “law enforcement and military training.”27 By 2003, the U.S. government was paying Blackwater $27 million in a no-​bid contract to provide private bodyguards for Ambassador L. Paul Bremer III in Iraq. With this contract, Blackwater became what Jeremy Scahill characterizes as the “leading mercenary company of the U.S. occupation” and the face of privatized war efforts in Iraq.28 While private security companies provided critical services in support of and parallel to the regular U.S.  military, their ambiguous legal status spelled trouble for not only Afghans and Iraqis abroad, but U.S.  citizens at home in New Orleans. Although PSCs envisioned themselves as a “fifth branch” of the U.S.  military, corporate heads, particularly at Blackwater, “resist[ed] attempts to subject its private soldiers to the Pentagon’s Uniform

Tactics of battle, strategies of state  95 Code of Military Justice (UCMJ),” the legal system regulating the conduct and rules of engagement for all branches of the U.S.  military.29 The heads of Blackwater insisted that their contractors were civilians, despite fighting alongside the military in Iraq and Afghanistan. At the time, this claim was technically true, as Blackwater forces had not yet been incorporated into the U.S. Total Force, the combined military body serving in the War on Terror. They would not officially become part of the military until February 2006, when Secretary of Defense Donald Rumsfeld pushed the measure through in the Pentagon’s Quadrennial Defense Review. While resisting oversight by the UCMJ, Blackwater also “claimed immunity from civilian litigation” by arguing that it was part of the military.30 Effectively, Blackwater succeeded in positioning itself outside both sets of laws and operated with impunity after its deployment to Iraq in 2003. It is within this realm of legal ambiguity that Blackwater and 235 other PSCs descended on New Orleans in the wake of Hurricane Katrina. One hundred and fifty Blackwater contractors arrived in New Orleans within 36 hours of the levee failures.31 Their quick response placed them in the city on September 1, preceded only by the Louisiana sector of the U.S. Coast Guard and the Louisiana Department of Wildlife and Fisheries, both of which had begun search and rescue operations as soon as the storm passed. The style of response between these first responders differed remarkably. Whereas the Coast Guard and Department of Wildlife and Fisheries armed themselves with helicopters and boats, Blackwater contractors entered the city in full military fashion, with desert fatigues, flak jackets, M-​16 assault rifles, M-​4 machines guns, and tactical shotguns.32 Some had just come from Iraq, where Blackwater had acquired a reputation for brutality and was amassing a record of engaging in unprovoked firefights against unarmed civilians. Blackwater President Gary Jackson explains the discrepancy as a matter of military intelligence. According to Jackson, “reports coming out of New Orleans indicated the place was in anarchy, with armed looters roaming the city and outlaws preying on the populace.”33 Jackson’s comment is just one example of the ways criminalizing discourse was bound up in decisions to securitize the city. In this case, Blackwater responded to the rhetoric by “send[ing] guys in there for real,” that is, bristling with weapons and primed for confrontation.34 Despite their militarized response, Blackwater couched its response in strictly humanitarian terms. In a statement released on September 1, Blackwater announced that it had “joined the ongoing relief effort in the Gulf Region devastated by Hurricane Katrina by dispatching a SA-​ 330J Puma [transport] helicopter to help assist in evacuating citizens from flooded areas.”35 J.  Cofer Black, Blackwater’s Vice Chairman and the State Department’s former head of counterterrorism, emphasized the altruistic angle of the company’s involvement:  “Our company launched a helicopter and crew with no contract, no one paying us.”36 Black intended for his comment to highlight his company’s generosity, yet he also revealed a crucial piece of information:  Blackwater had neither been commissioned nor

96  Jennifer N. Ross requested to mobilize in New Orleans. Without a contract from the federal government, Blackwater fell under “self-​deployed” status. According to A Failure of Initiative, the U.S. House of Representatives’ bipartisan report on Hurricane Katrina, “without an official deployment, the ‘self-​deployed’ personnel were acting without proper authority, without liability protection, and without eligibility for expense reimbursement.”37 Until Blackwater secured a contract with the Department of Homeland Security’s (DHS) Federal Protective Service a week after a storm, they were little more than vigilantes arriving on the scene. To be sure, Blackwater’s helicopter crew did provide an indispensable service flying alongside the Coast Guard for the first two weeks after Katrina. Their Puma alone “ferried 12 tons of water, food and supplies to rescuers and stranded inhabitants.”38 Coast Guard Commander Todd Campbell described their work as “critical” and praised their “professional response.”39 Blackwater further claims to have rescued over 100 survivors. In May 2006, Cofer Black explained: “We were able to find out how to put ourselves under Coast Guard command—​we got a Coast Guard call sign and we saved some 150 people that otherwise wouldn’t have been saved.”40 Erik Prince himself “bragged that ‘after Hurricane Katrina hit, we sent one of our Puma helicopters … I said “Start flying.” We got ourselves attached to the Coast Guard, actually became a Coast Guard call sign, and we flew, rescued 128 people.’ ”41 Yet, according to Commander Campbell, the Coast Guard turned down Blackwater’s offer to perform rescues and medical evacuations: [Blackwater] offered to do rescues, but there were legal concerns. What if someone got hurt? So we asked them not to engage in pulling people out. They debriefed me at the end of every day, and no one ever mentioned doing any rescues. If they were out there doing them, it was solely on their own.42 Although PSCs did engage in some genuine humanitarian efforts, their involvement grows murkier and more concerning in terms of national security and law enforcement. Alongside their much-​ needed assistance moving supplies, Blackwater also guarded critical infrastructure and locations of (white) wealth and power. A significant portion of Blackwater’s September 13 press release details their involvement in security operations and critical infrastructure protection, particularly “critical communications infrastructure” and “necessary petrochemical facilities.”43 In the words of Bill Sizemore and Joanne Kimberlin: Blackwater contractors stood guard over fuel shipments, generators, transmitters, railroad cars, stores, hotels, banks, museums, landmarks, industrial sites, power plants and a temporary morgue set up in Baton Rouge. They escorted CEOs, insurance adjusters, technicians and repair crews. They watched over high-​ dollar homes and conducted “asset

Tactics of battle, strategies of state  97 retrieval.” They plucked priceless paintings off walls and fetched precious gems from abandoned bedrooms.44 Blackwater’s involvement in securing not only critical infrastructure but also largely white centers of cultural and economic capital indicates that the discourses of warfare, crime, and insurgency had inflamed racial fears beyond the capacity of the police, or even the military, to respond. The perceived threat to the physical and ideological infrastructures of whiteness demanded state-​sanctioned extra-​legal responses, including the use of paramilitary companies operating outside the scope of either civilian or military law. That PSCs still offered a viable option for securitization despite their potential legal and human rights issues evidences once again the prioritization of national security and the maintenance of the racial status quo over the needs of hurricane survivors. PSC involvement in law enforcement presents the most concerning aspect of the collapse between domestic governance and counterterror military strategy. According to Scahill, “four Blackwater troops characterized their work in New Orleans as ‘securing neighborhoods’ and ‘confronting criminals.’ ”45 Questions posed to DHS failed to clarify Blackwater’s role outside of helicopter reconnaissance and supply runs. According to a September 8 report from the Washington Post, Russ Knocke, a DHS spokesman, “said he [knew] of no federal plans to hire private security.”46 In fact, Knocke explained, “We believe we’ve got the right mix of personnel in law enforcement for the federal government to meet the demands of public safety.”47 However, the day after Knocke’s statement, Blackwater contractors informed Scahill that they were on contract with DHS: When asked what authority they were operating under, one Blackwater contractor said, “We’re on contract with the Department of Homeland Security.” Then, pointing to one of his comrades, he said, “He was even deputized by the governor of the state of Louisiana. We can make arrests and use lethal force if we deem it necessary.”48 Even Congressional investigators have been unable to determine exactly what Blackwater’s role in law enforcement was and who commissioned them. What was to be the official and comprehensive report on the failures of Hurricane Katrina neglects to mention Blackwater, or any of the other private security firms, in either its “Military” or “Law Enforcement” chapters. Blackwater makes a brief appearance buried in Appendix 8, the Supplementary Report to the Findings of the Select Bipartisan Committee: To date, parts of the city are still patrolled by private mercenaries working for Blackwater … During her testimony before the Select Committee Governor Blanco denied having authorized the hire of mercenaries to join the relief effort. One Blackhawk [sic] employee stated that his

98  Jennifer N. Ross company had been contracted by the Department of Homeland Security. He also claimed his comrade had been deputized by Governor Blanco’s office … All of this office’s requests for more information about who hired Blackwater, and for what reason, have gone unanswered.49 Whether or not Blackwater had been officially hired by the Department of Homeland Security, legal accountability concerns remain since Title 18 of the U.S. Code, better known as the Posse Comitatus Act, prohibits active duty military from engaging in law enforcement activities. Technically, since PSCs were not considered a part of the military (and would not be incorporated into the U.S. Total Force until 2006), employing contractors for law enforcement did not violate Posse Comitatus.50 Moreover, PSCs’ legal ambiguity allowed the Bush Administration not only to circumvent Posse Comitatus laws but also to expand federal powers in disaster situations over the objections of individual states. At a moment when Governor Blanco resisted federalization of the state’s National Guard, the Bush Administration augmented federal powers by contracting PSCs through DHS, which was and remains a part of the executive branch. While the exact date and terms of Blackwater’s contract could not be found, what is known is that at some point between September 1 and September 13, Blackwater moved from supporting legitimate disaster relief organizations to staking out turf of their own. Blackwater viewed Katrina as an extremely lucrative business opportunity and exploited their cosseted partnership with the federal government to muscle its way onto the scene. Ultimately Blackwater hoped, first, to secure some form of federal contract for its services and, second, to wedge open the door to new markets in foreign and domestic “peacekeeping” missions when (or if) the War on Terror ended.51 Even as the September 1 press release extols Blackwater’s generosity, the company advertises services it can provide to anyone willing to pay, including “airlift services, security services, communication support, crowd control, humanitarian support services, and logistics and transportation services.”52 Despite PSCs’ claims of altruistic humanitarian and peacekeeping goals, their deployment against criminalized black, Arab, and Muslim populations after Katrina demonstrates both the enhancement of government powers at the expense of civil and human rights and the simultaneous expansion and normalization of what may be termed the counterterror state of exception. Their engagement in post-​storm New Orleans initiated a process by which similar employment would be pursued not only in other “exceptional” circumstances, such as the devastation of Puerto Rico during Hurricane Maria in 2017, but also in the service of quelling democratic protests conducted by Lakota Water Protectors at Standing Rock, North Dakota.

Case study 2: counterterror detention at Camp Greyhound After having apprehended “looters,” “trespassers,” and, in at least one case, “terrorists,” police, the military, and PSCs delivered the alleged criminals

Tactics of battle, strategies of state  99 to a Guantánamo Bay-​ style detention facility colloquially called Camp Greyhound. Constructed at the downtown Union Passenger Terminal, the camp was situated just half a mile from the Hyatt Regency where Mayor C. Ray Nagin closeted himself during the storm and less than five minutes by car from the Superdome. A  mere handful of accounts during or since Katrina report on the existence of Camp Greyhound. Fewer still recognize its connection to the War on Terror. The most comprehensive description not only of the physical structure but its ideological and administrative processes of racialized incarceration comes from Dave Eggers’s biography Zeitoun. The text follows Abdulrahman Zeitoun, a Syrian American business owner and long-​time resident of New Orleans, as he navigates the increasingly hostile post-​storm crisis. To underscore the physical similarities between Camp Greyhound and Guantánamo Bay, Eggers describes the facility in detail: The parking lot, where a dozen buses might normally be parked, had been transformed into a vast outdoor prison. Chain-​link fences, topped by razor wire, had been erected into a long, sixteen-​ foot-​ high cage extending about a hundred yards into the lot. Above the cage was a roof, a freestanding shelter like those at gas stations. The barbed wire extended to meet it … The razor wire was new, the portable toilets new. The fencing was new and of high quality. [Zeitoun] knew that none of this had existed before the storm. New Orleans Union Passenger Terminal had never before been used as a prison.53 While New Orleans typically utilized make-​shift holding tents during Mardi Gras to accommodate the overflow of revelers and pickpockets, the Camp Greyhound facility “was far more elaborate,” stable, and permanent in its construction.54 Strikingly, the fact that the facility “had been built since the storm” demonstrates the extent to which security proved an unrelenting focus of the post-​hurricane response.55 As Eggers writes, “while the construction was taking place, on September 2, 3, and 4, thousands of residents were being plucked from rooftops, were being discovered alive and dead in attics” as frantic search and rescue mission unfolded across the city.56 Reporter James Fox concurs. When the operation of Camp Greyhound was finally exposed, the detentions became “the focus of much retrospective anger in the black populations: it made clear where the priorities lay—​a holding jail was more important that food, water, and medical help.”57 Camp Greyhound embodies intertwining U.S.  histories of anti-​ black and anti-​Muslim racial oppression. In this facility, slavery, the convict lease system, and mass incarceration converged with Islamophobia, indefinite detention, and counterterror operations. Following Hurricane Katrina, Louisiana State Penitentiary (also called Angola) warden Burl Cain obtained building materials and marshaled a convict labor force to erect the detention center with swift efficiency. Although water submerged 80 percent of the city and aid could not reach the nearby Superdome for ostensibly that very reason, Cain’s

100  Jennifer N. Ross laborers secured the downtown terminal and assembled Camp Greyhound within two days of the storm. A staff of Angola prison guards and National Guardsmen manned it.58 Angola’s involvement constructing and running the facility inextricably links Camp Greyhound with eighteenth-​and nineteenth-​ century systems of chattel slavery and convict leasing programs. As Fox describes it, Angola is an “18,000-​acre Louisiana state penitentiary, a former slave plantation and the toughest of all American jails, where the average sentence is 89.9 years.”59 In 1880, Samuel L. James, a former Confederate major and then-​holder of the Louisiana State Penitentiary lease, purchased the 8,000 acre Angola Plantation in West Feliciana Parish.60 Through the convict lease system, prisoners under James’s charge worked the plantation fields and built levees and railroads. Many prisoners suffered under and succumbed to dismal conditions while James profited off their labor. In 1898 Louisiana formally amended its constitution to ban the convict lease system, and in 1901, the state purchased the land from James, assuming control over the prisoners once more. However, Angola maintained its brutal reputation despite prison reforms throughout the first half of the twentieth century. By the 1960s and 1970s, Angola became known as “the bloodiest prison in the South” because rampant stabbings sent one in every ten inmates to the infirmary each year.61 Today Angola continues to function as “a modern day slave plantation” where overwhelmingly black inmates tend “acre after acre of corn, soybeans and cotton.”62 Prisoners and staff alike refer to the guards as “Freemen” and to “the best behaved inmates” as “house boys.”63 As Laura Sullivan describes it, it is not uncommon to see “100 black men toil, bent over in the field, while a single white officer on a horse sits above them, a shotgun in his lap.”64 Under a mixture of Angola prison guards and National Guardsmen, Camp Greyhound expedited post-​storm efforts to reassert control over the largely black population of hurricane survivors not already sequestered in the Superdome. Between August 30 and September 8 alone, “more than two hundred arrests were made. Most of those, 178, were for looting; 26 for possession of stolen vehicles; 20 for resisting arrest; 14 for theft; and 9 for attempted murder.”65 Many of these charges appear to have been fabricated or exaggerated. For instance, Robert Davis, a black 64-​year-​old resident of New Orleans, was beaten by police and charged with public intoxication despite 25  years of sobriety.66 Reggae, another black resident, was similarly beaten and arrested after he and two friends “rescue[d]‌hundreds of people in the Seventh Ward.”67 Meanwhile, some New Orleanians, such as Anthony Jack, a black immigrant from Trinidad and Tobago, were arrested for “breaking curfew” while inside their own homes.68 By mid-​October, over 1,100 people had passed through the jail, including “450 arrested … for minor offenses and about 200 for serious crimes.”69 Between the widespread arrests and the overwhelming presence of police, military, and private security contractors, survivors began paralleling the plight of black New Orleanians with the racialized targets of the War on Terror. As Cynthia Hedge-​Morrell, a member of the New Orleans City Council, reflects:

Tactics of battle, strategies of state  101 The feeling that [black] residents had about the National Guard and the state police and the visiting police was that they were in an armed, occupied city. I  can’t help but believe that that’s the same way they treated people in any city that we go in and invade. I guess maybe that’s the way the Iraqis feel sometimes.70 While anti-​black histories of slavery, convict leasing, and mass incarceration informed one facet of Camp Greyhound’s construction and operation, the facility also reveals the domestication of War on Terror counterterrorism and incarceration tactics against racialized populations. On September 6, seven days after landfall, a “mismatched” contingent of military and law enforcement personnel arrested Zeitoun and his friends and transported them to Camp Greyhound.71 There they were accused of terrorism and sequestered away in an outdoor cage. Upon arrival at Camp Greyhound, when Zeitoun’s friend Todd asked why they were there, a solider responded, “You guys are al Qaeda.”72 Shortly after that, “another passing soldier looked at Zeitoun and muttered ‘Taliban.’ ”73 The police and National Guard had already made up their minds as to the men’s guilt, but a search of the men’s belongings cemented these assumptions when the National Guard found $10,000 in cash in Nasser’s duffel bag, and Todd’s MapQuest printouts and pictures of flood damage. The National Guard and state and local police understood the finds to be evidence of a terrorist plot, though no charges were ever officially leveled. The construction of Camp Greyhound and the investigation into Abdulrahman Zeitoun indicates that lingering fears of terrorist sleeper cells continued to influence policy decisions four years after the 9/​11 attacks. After the initial accusation of Al Qaeda involvement, Eggers reveals Zeitoun’s deep-​ seated fear of racial profiling and counterterror incarceration: Zeitoun had long feared this day would come … The introduction of the idea of “sleeper cells”—​groups of would-​be terrorists living in the U.S. and waiting, for years or decades to strike—​meant that everyone at their mosque, or the entire mosque itself, might be waiting for instructions from their presumed leaders in the hills of Afghanistan or Pakistan.74 Zeitoun’s fears were not unfounded. Just nine days after the September 11, 2001 attacks, President Bush publicly stated that rogue actors and terrorist sleeper cells had infiltrated Western society, including the United States, and awaited an opportunity to strike. In his Address to a Joint Session of Congress on September 20, 2001 Bush asserted that radicalized Muslim men “are trained in the tactics of terror … [and are] sent to hide in countries around the world to plot evil and destruction.”75 On December 11, Bush again suggested the presence of sleeper cells when he vowed to “discover and destroy” them.76 This discourse, woven throughout the President’s speeches between September 11 and the new year, firmly established the idea that terrorists could be anyone,

102  Jennifer N. Ross anywhere in the United States. Against federal exhortations to remain vigilant, Eggers underscores the capriciousness with which racialized assumptions of guilt might be made. Suspicion and fear caused “imaginations run amok,” leading the most innocuous activities to “bloom” into “shadowy dealings … in the imagination of any given police office.”77 In Eggers’s description of the encounter, Zeitoun’s interrogators were “seeing something more” in the evidence they had amassed and had become “too worked up” for simple explanations to exonerate Zeitoun and his friends.78 In actuality, the fancy of imagination was backed by official federal review. In September 2003, the Department of Homeland Security published a report entitled “How Terrorists Might Exploit a Hurricane” detailing pre-​event, event, and post-​event threats posed by “lone actor[s]‌or small terrorist splinter cell[s].”79 A  “strategic red cell” of “more than 35 experts from intelligence, industry, military, and academia” identified three methods of potential terrorist action: surveillance of critical infrastructure and emergency response, disruption of evacuation routes and shelters, and cyber-​ attacks.80 Although the participants recognized that “the probability of a terrorist attack during a hurricane was low,” red cells had been created to brainstorm all possible modes of attack, farfetched or not. In a bid to prevent “additional surprises” like the September 11 attacks, red cells traffic in potentiality, in what Joseph Masco calls “imaginative projection” to identify possible future threats.81 Since September 2001, red cells have proliferated across federal departments, thus making imaginative projection a staple of state assessment and planning. Despite the low probability of terrorist activity during a hurricane, imagining the possibility resulted in very real policy decisions that shifted the type and tenor of post-​Katrina disaster preparedness and response to include counterterror surveillance and detention operations. Once incarcerated at Camp Greyhound, the racially biased U.S.  criminal justice system, as well as standard War on Terror detention procedures, worked against Zeitoun and the other detainees. During his three-​day incarceration at Camp Greyhound, no one informed Zeitoun of his rights, of the charges against him, or allowed him to contact either his family or a lawyer. As legal scholars Brandon Garrett and Tania Tetlow explain, the “makeshift criminal court facility” at Camp Greyhound departed in almost every way from constitutional criminal justice procedure.82 Inmates were denied open proceedings, legal representation, and reasonable bonds, and ended up serving more time than their crime would have warranted in the first place.83 Because the storm had flooded evidence rooms, dispersed the pool of possible jurors and lawyers, and damaged courthouses, the Louisiana Supreme Court declared a two-​month “court holiday,” while Governor Blanco issued an executive order suspending all deadlines for legal procedures for 30 days. These measures effectively shut down the judicial system, leaving thousands serving illegal sentences, awaiting charges, and without legal representation for up to a year after Katrina.

Tactics of battle, strategies of state  103 The precarity of Zeitoun’s situation was not lost on him. The physical jail, the Islamophobia and abuse exhibited by the guards, and the disregard for constitutional criminal justice procedure drew immediate connections with Guantánamo Bay. Zeitoun recalls: It looked precisely like the pictures he’d seen of [the prison]. Like that complex, it was a vast grid of chain-​link fencing with few walls, so the prisoners were visible to the guards and each other. Like Guantánamo, it was outdoors, and there appeared to be nowhere to sit or sleep. There were simply cages and the pavement beneath them.84 Zeitoun may have been referencing photographs of Camp X-​Ray, the makeshift outdoor prison at Guantánamo Bay, which had started receiving detainees in January 2002. Camp X-​Ray held the early targets of the War on Terror until Camp Delta, a facility modeled after U.S. maximum security prisons, was completed in April of that year.85 In the hunt for terrorists, the Bush Administration enacted a policy of extracting alleged terrorists and collaborators from anywhere in the world, with or without the host government’s knowledge or proper judicial process. According to Joseph Margulies, lead counsel in the Rasul v.  Bush Supreme Court case, these suspects could then “be held incommunicado and in solitary confinement, without access to courts of counsel, without charges of any kind, unknown to the world, and without the benefit of the Geneva Convention[s]‌.”86 While incarcerated at Camp Greyhound, and later the Elayn Hunt maximum security prison, Zeitoun questioned how his situation differed from those of so many other Muslim men. It would not be hard for him to disappear without a trace. No one knew where he was. No one even knew if he was alive. He was being held without contact, charges, bail, or trial. Would it not behoove the Department of Homeland Security to add a name to their roster of dangerous individuals? … Professors, doctors, and engineers had all been seized and disappeared for months and years in the interest of national security. Why not a house painter?87 While Eggers explores in detail the anti-​ Arab dimensions of Camp Greyhound and its foundation in counterterror logics, the facility also incarcerated a different type of “insurgent,” one Eggers does not discuss. Even as the facility became the de facto detention center for suspected terrorists like Zeitoun, it also held black “insurgents” who disrupted the social, spatial, and economic orderings of whiteness. The ongoing War on Terror certainly influenced post-​Katrina references to black hurricane survivors as “insurgents.” Yet the use of the term also stems from white accusations of black terrorism during the 1950s and 1960s. Throughout the long Civil Rights movement, civil rights opponents and segregationists rhetorically invoked not just anxieties of black criminality, but terror. In 1959, South Carolina Senator

104  Jennifer N. Ross Strom Thurmond opposed the Civil Rights Act of 1960 on the grounds that “political demands for integration of the races” would bring a “wave of terror, crime, and juvenile delinquency.”88 In 1967, Florida Representative Charles Bennett excoriated black nationalists like Stokely Carmichael as “vigorously encourage[ing] terrorism and violence.”89 The emergence of what Stuart Hall calls the “exceptional state” in the post-​civil rights period, the militarization of domestic police forces, and U.S.  counterinsurgency action in countries such as Vietnam led to an increasing fluidness in the rhetoric of warfare, terrorism, and domestic policing across national and global settings. As Nikhil Singh explains, between “the ‘war on drugs’ [and] today’s ‘global war on terror,’ [a]‌gradual blurring of and reciprocity between the discourses of crime and war” came to characterize post-​civil rights American liberalism.90 This “blurring” and “reciprocity” came to a head after Hurricane Katrina as the post-​9/​11 state of exception transformed rescue and recovery efforts into military operations, aid and comfort into the imposition of “law and order,” and victims into enemies.

Conclusion In the aftermath of Hurricane Katrina, government officials, the news media, and paramilitary actors relied heavily on counterterror security rhetoric and strategies, including the use of private contractors and a Guantánamo Bay-​style detention facility, to control minority groups they deemed out of line. At one time, we may have taken comfort in the idea that post-​Katrina New Orleans indeed seemed exceptional in its level of destruction and degree of human suffering. However, the extraordinary use of paramilitary actors and counterterror detention against domestic populations normalized both tactics outside of terrorism-​related national security, setting precedent for future application during national emergencies and even domestic political protest. Following Hurricane Maria, local governments in Puerto Rico, the U.S.  federal government, and private individuals adopted the same counterterror tactics as used during Katrina, particularly hiring private security contractors (including Blackwater’s rebranded company Academi) to protect hotels, communications networks, relief workers, and fresh water supplies.91 An indeterminate number of other private security companies also deployed to Puerto Rico after the storm.92 The use of paramilitary security forces has also proliferated outside of disaster response, thus expanding state of exception into other areas. In 2017 the Dallas, Texas-​based company Energy Transfer Partners hired TigerSwan private security contractors to protect the Dakota Access Pipeline by “defeat[ing] pipeline insurgencies,” or the No DAPL protests at Standing Rock, North Dakota.93 As during Katrina, TigerSwan rationalized surveillance, infiltration, and protest disruption by describing Native/​ Indigenous and allied protestors as insurgents. According to “internal TigerSwan communications,” the company “describe[d]‌the [No

Tactics of battle, strategies of state  105 DAPL] movement as ‘an ideologically driven insurgency with a strong religious component’ and compare[d] the anti-​pipeline water protectors to jihadist fighters.”94 Together, the militarized responses to Hurricane Maria and the No DAPL protests reveal that the Katrina disaster normalized counterterror/​counterinsurgency tactics not only as a viable option for post-​disaster response but also as a means to shut down democratic protest. In the words of Walter Benjamin, it appears that “the state of exception … has [indeed] become the rule.”95

Notes 1 Michel Foucault, History of Sexuality Volume 1: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1990), 137. 2 Nicholas Mirzoeff, “The Right to Look,” Critical Inquiry 37, no. 3 (2011): 494, accessed October 11, 2013, www.jstor.org/​stable/​10.1086/​659354. 3 Ibid.. 4 Douglas Brinkley, The Great Deluge:  Hurricane Katrina, New Orleans, and the Mississippi Gulf Coast (New York: Harper Perennial, 2006), 160, 569. 5 Jeremy Scahill, Blackwater:  The Rise of the World’s Most Powerful Mercenary Army (New York: MJF Books, 2007), 389. 6 Jordan Camp, “We Know This Place: Neoliberal Racial Regimes and the Katrina Circumstance,” American Quarterly 61, no.  3 (2009):  696, accessed February 8, 2017, www.jstor.org/​stable/​27735014. 7 Michael Perlstein and Brian Thevenot, “Even a Cop Joins in the Looting,” Times-​ Picayune, August 30, 2005, accessed May 13, 2019, infoweb.newsbank.com/​apps/​ news/​document-​view?p=WORLDNEWS&docref=news/​10E37728A9DF0E20; Ed Anderson and Jan Moller, “Looting Difficult to Control,” Times-​Picayune, August 30, 2005, accessed May 13, 2019, infoweb.newsbank.com/​ apps/​ news/​ document-​view?p=WORLDNEWS&docref=news/​ 10E3772838F53510. 8 Perlstein and Thevenot, “Even a Cop Joins in the Looting”; Perlstein and Thevenot, “Looters Leave Nothing Behind in Storm’s Wake—​Police Officers Seen Joining in on Free-​for-​All,” Times-​Picayune, August 31, 2005, accessed May 16, 2019, infoweb. newsbank.com/​apps/​news/​document-​view?p=WORLDNEWS&docref=news/​ 10E2254591513A40. 9 Perlstein and Thevenot, “Looters Leave Nothing Behind in Storm’s Wake.” 10 Perlstein and Thevenot, “Looters”; Michael Perlstein, “Looting on Tchoupitoulas Street,” Times-​Picayune, August 31, 2005, accessed May 16, 2019, infoweb. newsbank.com/​apps/​news/​document-​view?p=WORLDNEWS&docref=news/​ 10CA1B5F9F9622C8. 11 “Looting or Finding,” September 2005, JPG, Salon, https://​media.salon.com/​2005/​ 09/​looting_​or_​finding.jpg; Tania Ralli, “Who’s a Looter? In Storm’s Aftermath, Pictures Kick Up a Different Kind of Tempest,” New  York Times, September 5, 2005, accessed May 20, 2019, www.nytimes.com/​2005/​09/​05/​business/​whos-​a-​ looter-​in-​storms-​aftermath-​pictures-​kick-​up-​a-​different.html. Emphasis added. 12 Ralli, “Who’s a Looter?” Emphasis added. 13 Nikhil Singh, “Racial Formation in an Age of Permanent War,” in Racial Formations in the 21st Century, eds. Daniel Martinez HoSang, Oneka LaBennett, and Laura Pulido (Berkeley: University of California Press, 2012), 295.

106  Jennifer N. Ross 14 Naomi Murukawa, “The Origins of the Carceral Crisis: Racial Order as ‘Law and Order’ in Postwar American Politics,” in Race and American Political Development, eds. Joseph Lowndes, Julie Novkov, and Dorian T. Warren (New York: Routledge, 2008), 235. 15 Ibid.. 16 Michelle Alexander, The New Jim Crow:  Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2012), 43. 17 Brinkley, The Great Deluge, 173. 18 When the Levees Broke, directed by Spike Lee (2006; New York: HBO, 2016), DVD. 19 Brinkley, The Great Deluge, 160. 20 See Nikhil Singh’s Race and America’s Long War (Oakland:  University of California Press, 2019)  for an extensive discussion of the reciprocity between racialization and imperialism in national and transnational contexts. 21 Nicholas Mirzoeff, “The Right to Look, 494. 22 Paul Kramer, “Desert, Storm,” Pulitzer Center on Crisis Reporting, September 7, 2016, accessed June 9, 2017, https://​pulitzercenter.org/​reporting/​desert-​storm. 23 “Bush: We Will Do What It Takes,” CNN online, September 15, 2005, accessed October 15, 2015, www.cnn.com/​2005/​POLITICS/​09/​15/​bush.transcript/​. Emphasis added. 24 “Terrorist Attack in U.S.,” CSPAN, September 17, 2001, accessed October 15, 2015, www.c-​span.org/​video/​?166108-​1/​terrorist-​attacks-​us. Emphasis added. 25 “Bush.” Emphasis added. 26 Blackwater USA rebranded several times since their involvement in the 2007 Nisour Square massacre. Since then they have been called Xe Services (2009) and, currently, Academi (2011). At the time of the 2011 name change, the company transferred out of Erik Prince’s hands and into those of private investors. Subsidiaries include Presidential Airways and Blackwater Security Consulting. Erik Prince, in the meantime, founded Frontier Services Group, a new private security company based in Hong Kong. See Jason Ukman, “Ex-​Blackwater Firm Gets a Name Change, Again,” Washington Post, December 12, 2011, accessed April 20, 2020, www.washingtonpost.com/​blogs/​checkpoint-​washington/​post/​ex-​ blackwater-​firm-​gets-​a-​name-​change-​again/​2011/​12/​12/​gIQAXf4YpO_​blog.html. 27 “Blackwater USA Continues to Support Katrina Devastated Area,” Blackwater USA, September 13, 2005, accessed October 12, 2018, http://​web.archive.org/​web/​ 20060320 222945/​http://​blackwaterusa.com. 28 Scahill, Blackwater, 13. 29 Ibid., 57. 30 Ibid.. 31 Ibid., 389; Dina Temple-​Raston, “Blackwater Eyes Domestic Contracts in U.S.,” NPR, September 28, 2007, accessed September 17, 2018, www.npr.org/​templates/​ story/​story.php?storyId=14707922. 32 Scahill, Blackwater, 389–​390. 33 Bill Sizemore and Joanne Kimberlin, “Blackwater Part  5:  On American Soil,” Virginian-​Pilot, July 27, 2006, accessed September 17, 2018, https://​pilotonline. com/​news/​military/​local/​article_​253456e6-​96e6-​59c0-​9dd9-​564dd0e222c4.html. 34 Ibid. 35 “Blackwater Joins Hurricane Katrina Relief Effort,” Blackwater USA, September 1, 2005, accessed January 12, 2018, https://​web.archive.org/​web/​20060320223559/​ http://​www.blackwaterusa.com/​press/​ katrina.asp; “Aerospatiale SA-​330 Puma,”

Tactics of battle, strategies of state  107 Airliners.net, accessed January 12, 2018, www.airliners.net/​aircraft-​data/​ aerospatiale-​sa-​330-​puma/​9. 36 Scahill, Blackwater, 393. 37 United States House of Representatives, A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina (Washington, DC, U.S. Government Printing Office: 2006), 251. 38 Sizemore and Kimberlin, “Blackwater Part 5.” 39 Ibid. 40 Scahill, Blackwater, 393. 41 “Blackwater Joins.” 42 Scahill, Blackwater, 394; Sizemore and Kimberlin, “Blackwater Part 5.” 43 “Blackwater USA Continues to Support Katrina Devastated Areas.” 44 Sizemore and Kimberlin, “Blackwater Part 5.” 45 Scahill, Blackwater, 390. 46 Griff Witte, “Private Security Contractors Head to the Gulf,” Washington Post, September 8, 2005, accessed January 12, 2018, www.washingtonpost.com/​wp-​dyn/​ content/​article/​2005/​09/​07/​AR2005090702214.html. 47 Witte, “Private Security Contractors.” 48 Scahill, Blackwater, 392. 49 United States House of Representatives, 479–​480. 50 Ibid. 51 Scahill, Blackwater, 400; Sizemore and Kimberlin, “Blackwater Part 5.” 52 “Blackwater Joins.” 53 Dave Eggers, Zeitoun (New York: Vintage Books, 2010), 218, 226. 54 Ibid., 218. 55 Ibid. 56 Ibid., 227. 57 James Fox, “In it Up to Their Necks,” New Statesman 140, no. 5048 (2011): 48. 58 Ibid., 47. 59 Ibid. 60 “History of Angola,” Angola Museum at the Louisiana Penitentiary, Louisiana State Penitentiary Museum Foundation, accessed August 15, 2019, www. angolamuseum.org/​ history-​of-​angola; Delia Cabe, “Angola State Prison: A Short History,” Knight Case Studies Initiative at Columbia University, accessed August 15, 2019, http://​ccnmtl.columbia.edu/​projects/​caseconsortium/​casestudies/​54/​ casestudy/​www/​layout/​case_​id_​54_​id_​547.html. 61 Delia Cabe, “Angola State Prison.”; Laura Dimon, “A Modern Day Slave Plantation Exists, and It’s Thriving in the Heart of America,” Mic, May 8, 2014, accessed August 15, 2019, www.mic.com/​articles/​88461/​a-​modern-​dayslave-​plantation-​exists-​and-​it-​s-​thriving-​in-​the-​heart-​of-​america. 62 Dimon, “A Modern Day Slave Plantation Exists.”; Laura Sullivan, “Doubts Arise about 1972 Angola Prison Murder,” NPR, October 27, 2008, accessed August 15, 2019, www.npr.org/​templates/​story/​story.php?storyId= 96030547? storyId=96030547. 63 Quoted in Delia Cabe, “Angola State Prison.” 64 Sullivan, “Doubts Arise.” 65 Brandon Garrett and Tania Tetlow, “Criminal Justice Collapse: The Constitution after Hurricane Katrina,” Duke Law Journal 56, no. 1 (2006): 145, accessed August 2, 2017, www.jstor.org/​stable/​40040542.

108  Jennifer N. Ross 66 Jessica Azulay, “Abuse, Forced Labor Rampant in New Orleans Justice System,” New Standard, October 12, 2005, accessed February 8, 2017, http://​ newstandardnews.net/​content/​index.cfm/​items/​2475. 67 Ibid. 68 Ibid. 69 Christopher Drew, “Court’s Slow Recovery Begins at Train Station in New Orleans,” New York Times, October 14, 2005, accessed February 11, 2017, www. nytimes.com/​2005/​10/​14/​us/​nationalspecial/​courts-​slow-​recovery-​beginsat-​train-​ station-​in-​new.html. The count seems to not include prisoners from local jails who were transferred to the facility for processing after the jails flooded. 70 When the Levees Broke. 71 Eggers, Zeitoun, 207. Eggers further describes the arresting personnel as by a group of men “wearing mismatched police and military uniforms … Two or three of the men were dressed in black, with no visible patches or insignias” (206–​ 208). Given this description, it is entirely possible that Zeitoun was picked up by a contingent of police, National Guard, and private contractors. However, it is almost certain that Blackwater was not involved in Zeitoun’s arrest. Blackwater contractors wore khakis and polo shirts, though they were still heavily armed and wore Kevlar vests. 72 Ibid., 212. 73 Ibid., 213. 74 Ibid., 212–​213. 75 President George W. Bush, “Address to a Joint Session of Congress,” in Our Mission and Our Moment:  Speeches Since the Attacks of September 11 (Washington, DC: The White House, 2002), 10. 76 President George W.  Bush, “Address at the Citadel,” in Our Mission and Our Moment: Speeches Since the Attacks of September 11 (Washington, DC:  The White House, 2002), 5. 77 Eggers, Zeitoun, 212. 78 Ibid., 215. 79 “Strategic Red Cell:  How Terrorists Might Exploit a Hurricane,” Public Intelligence, accessed February 11, 2018, http://​info.publicintelligence.net/​DHS-​ HurricaneTerror.pdf. 80 Ibid. 81 Micah Zenko, “Inside the CIA Red Cell: How an Experimental Unit Transformed the Intelligence Community,” Foreign Policy, October 30, 2015, https://​ foreignpolicy.com/​2015/​10/​30/​inside-​the-​cia-​red-​cell-​micah-​z enko-​red-​team-​ intelligence/​; Joseph Masco, The Theater of Operations: National Security Affect from the Cold War to the War on Terror (Durham, NC: Duke University Press, 2014), 36. 82 Garrett and Tetlow, “Criminal Justice Collapse,” 145. 83 Ibid. 84 Eggers, Zeitoun, 219. 85 Joseph Margulies, Guantánamo and the Abuse of Presidential Power (New York: Simon and Schuster, 2006), 4. 86 Ibid.,  3–​4. 87 Eggers, Zeitoun, 255. 88 Murukawa, “The Origins of the Carceral Crisis,” 241.

Tactics of battle, strategies of state  109 89 Quoted in Murukawa, “The Origins of the Carceral Crisis,” 241, 249. 90 Singh, “Racial Formation in an Age of Permanent War,” 280. 91 Joel Cintrón Arbasetti, “Masked and Armed with Rifles:  Military Security Firms Roam Streets of San Juan,” Centro de Periodismo Investigativo [Center of Investigative Journalism], October 10, 2017, accessed October 12, 2017, http://​ periodismoinvestigativo.com/​2017/​10/​masked-​and-​armed-​with-​rifles-​military-​ security-​firms-​roam-​streets-​of-​san-​juan/​. 92 Ibid. 93 Alleen Brown, Will Parrish, and Alice Speri, “Leaked Documents Reveal Counterterrorism Tactics Used at Standing Rock to ‘Defeat Pipeline Insurgencies,’ ” The Intercept, May 27, 2017, accessed May 29, 2017, https://​theintercept.com/​ 2017/​05/​27/​leaked-​documents-​reveal-​security-​firms-​counterterrorism-​tactics-​at-​ standing-​rock-​to-​defeat-​pipeline-​insurgencies/​. 94 Ibid. 95 Quoted in Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005), 6.

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110  Jennifer N. Ross “Bush:  We Will Do What It Takes.” CNN online, September 15, 2005. Accessed October 15, 2015. www.cnn.com/​2005/​POLITICS/​09/​15/​bush.transcript/​. Bush, George W. “Address at the Citadel.” In Our Mission and Our Moment: Speeches Since the Attacks of September 11. Washington, DC: The White House, 2002. Bush, George W. “Address to a Joint Session of Congress.” In Our Mission and Our Moment: Speeches Since the Attacks of September 11. Washington, DC: The White House, 2002. Cabe, Delia. “Angola State Prison: A Short History.” Knight Case Studies Initiative at Columbia University. Accessed August 15, 2019. http://​ccnmtl.columbia.edu/​ projects/​caseconsortium/​casestudies/​54/​casestudy/​www/​layout/​case_​id_​54_​id_​547. html. Camp, Jordan. “We Know This Place:  Neoliberal Racial Regimes and the Katrina Circumstance.” American Quarterly 61, no. 3 (2009): 693–​717. Accessed February 8, 2017. www.jstor.org/​ stable/​27735014. Dimon, Laura. “A Modern Day Slave Plantation Exists, and It’s Thriving in the Heart of America.”Mic, May 8, 2014. Accessed August 15, 2019. www.mic.com/​articles/​ 88461/​ a-​modern-​day-​slave-​plantation-​exists-​and-​it-​s-​thriving-​in-​the-​heart-​of-​america. Drew, Christopher. “Court’s Slow Recovery Begins at Train Station in New Orleans.” New York Times October 14, 2005. Accessed February 11, 2017. www.nytimes.com/​ 2005/​10/​14/​us/​nationalspecial/​courts-​slow-​recovery-​beginsat-​train-​station-​in-​new. html. Eggers, Dave. Zeitoun. New York: Vintage Books, 2010. Foucault, Michel. History of Sexuality Volume 1:  An Introduction, translated by Robert Hurley. New York: Vintage Books, 1990. Fox, James. “In it Up to Their Necks.” New Statesman 140, no. 5048 (2011): 48. Garrett, Brandon, and Tania Tetlow. “Criminal Justice Collapse:  The Constitution after Hurricane Katrina.” Duke Law Journal 56, no. 1 (2006): 127–​178. Accessed August 2, 2017. www.jstor.org/​stable/​40040542. “History of Angola.” Angola Museum at the Louisiana Penitentiary. Accessed August 15, 2019. www.angolamuseum.org/​history-​of-​angola. Kramer, Paul. “Desert, Storm.” Pulitzer Center on Crisis Reporting, September 7, 2016. Accessed June 9, 2017. https://​pulitzercenter.org/​reporting/​desert-​storm. Lee, Spike, dir. When the Levees Broke. 2006; New York: HBO, 2016. DVD. “Looting or Finding.” September 2005, JPG, Salon. Accessed May 20, 2019. https://​ media.salon. com/​2005/​09/​looting_​or_​finding.jpg. Margulies, Joseph. Guantánamo and the Abuse of Presidential Power. New York: Simon and Schuster, 2006. Masco, Joseph. The Theater of Operations: National Security Affect from the Cold War to the War on Terror. Durham, NC: Duke University Press, 2014. Mirzoeff, Nicholas. “The Right to Look.” Critical Inquiry 37, no. 3 (2011): 473–​496. Accessed October 11, 2013. www.jstor.org/​stable/​10.1086/​659354. Murukawa, Naomi. “The Origins of the Carceral Crisis: Racial Order as ‘Law and Order’ in Postwar American Politics.” In Race and American Political Development, edited by Joseph Lowndes, Julie Novkov, and Dorian T. Warren, 234–​ 255. New York: Routledge, 2008. Perlstein, Michael. “Looting on Tchoupitoulas Street.” Times-​Picayune, August 31, 2005. Accessed May 16, 2019. infoweb.newsbank.com/​apps/​news/​document-​ view?p=WORLDNEWS&docref=news/​10CA1B5F9F9622C8.

Tactics of battle, strategies of state  111 Perlstein, Michael, and Brian Thevenot. “Even a Cop Joins in the Looting.” Times-​ Picayune, August 30, 2005. Accessed May 13, 2019. infoweb.newsbank.com/​apps/​ news/​document-​view?p=WORLDNEWS&docref=news/​10E37728A9DF0E20. Perlstein, Michael, and Brian Thevenot. “Looters Leave Nothing Behind in Storm’s Wake—​Police Officers seen Joining in on Free-​for-​All.” Times-​Picayune, August 31, 2005. Accessed May 16, 2019. infoweb.newsbank.com/​apps/​news/​document-​ view?p=WORLDNEWS&docref=news/​10E2254591513A40. Ralli, Tania. “Who’s a Looter? In Storm’s Aftermath, Pictures Kick Up a Different Kind of Tempest.” New York Times, September 5, 2005. Accessed May 20, 2019. www.nytimes.com/​ 2 005/​ 0 9/​ 0 5/​ business/​ whos-​ a -​ l ooter-​ i n-​ s torms-​ a ftermath-​ pictures-​kick-​up-​a-​different.html. Scahill, Jeremy. Blackwater: The Rise of the World’s Most Powerful Mercenary Army. New York: MJF Books, 2007. Singh, Nikhil Pal. Race and America’s Long War. Oakland: University of California Press, 2019. Singh, Nikhil Pal. “Racial Formation in an Age of Permanent War.” In Racial Formations in the 21st Century, edited by Daniel Martinez HoSang, Oneka LaBennett, and Laura Pulido, 276–​301. Berkeley: University of California Press, 2012. Sizemore, Bill, and Joanne Kimberlin. “Blackwater Part  5:  On American Soil.” Virginian-​Pilot, July 27, 2006. Accessed September 17, 2018. https://​pilotonline. com/​news/​ military/​local/​article_​253456e6-​96e6-​59c0-​9dd9-​564dd0e222c4.html. “Strategic Red Cell:  How Terrorists Might Exploit a Hurricane.” Public Intelligence. Accessed February 11, 2018. http://​info.publicintelligence.net/​DHS-​ HurricaneTerror.pdf. Sullivan, Laura. “Doubts Arise about 1972 Angola Prison Murder.” NPR, October 27, 2008. Accessed August 15, 2019. www.npr.org/​templates/​story/​story.php?storyI d=96030547?storyId=96030547. Temple-​ Raston, Dina. “Blackwater Eyes Domestic Contracts in U.S.” NPR, September 28, 2007. Accessed September 17, 2018. www.npr.org/​templates/​story/​ story.php? storyId=14707922. “Terrorist Attack in U.S.” CSPAN, September 17, 2001. Accessed October 15, 2015. www.c-​span.org/​video/​?166108-​1/​terrorist-​attacks-​us. Ukman, Jason. “Ex-​Blackwater Firm Gets a Name Change, Again.” Washington Post, December 12, 2011. Accessed April 20, 2020. www.washingtonpost.com/​ blogs/​checkpoint-​washington/​post/​ex-​blackwater-​firm-​gets-​a-​name-​change-​again/​ 2011/​12/​12/​gIQAXf4YpO_​blog.html. United States House of Representatives. A Failure of Initiative:  Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina. Washington, DC: U.S. Government Printing Office, 2006. Witte, Griff. “Private Security Contractors Head to the Gulf.” Washington Post, September 8, 2005. Accessed January 12, 2018. www.washingtonpost.com/​wp-​dyn/​ content/​article/​2005/​09/​07/​AR2005090702214.html. Zenko, Micah. “Inside the CIA Red Cell: How an Experimental Unit Transformed the Intelligence Community.” Foreign Policy, October 30, 2015. Accessed October 20, 2019. https://​foreignpolicy.com/​2015/​10/​30/​inside-​the-​cia-​red-​cell-​micah-​zenko-​red-​ team-​intelligence/​.

5  Exceptional biometrics Peter Hitchcock

In many ways, the norming of biometrics represents the last of state sovereignty—​“a waning sovereignty” as Wendy Brown puts it1—​or an infrastructural immunity primed to reclaim and preserve a border epistemology that extends back, by some accounts, to the Peace of Westphalia. Yet, in this instance, the techné of disruption cannot be reduced to recidivism. It is not merely a nostalgic tic of geopolitical integrity long surpassed by network efficiencies or the lines of flight drawn by capital circulation within actually existing globalization. Certainly, there is a logic at stake in the expansion and sophistication of surveillance efficiencies. The links between border biometrics and the atrocities of the Shoah, symbolized by the biometric tattoo, are a chilling reminder of the material entanglements of state identification processes and the horrors of racial hygiene. It is rare for a state to announce that logical connection despite the fact that it is part of the grammar of contemporary authoritarian populism and is more or less explicit in individual pronouncements of faith in racial prejudice. Most developers in the biometric industry link their technology to adeptness in security, arguing that the key to minimizing population strife is to marshal identification more intensively as a natural condition of state stability. But what does the techné of biometrics achieve? Or rather, what are both the political unconscious of its desire for security and the unintended consequences of its metrical measure of state viability? Is the logic itself a fingerprint of sovereign identity or a digital mark of non-​human futurity, a condition that does not lack humans, but does not ground their socialization on the national characteristics of a citizen subject? Perhaps, what is exceptional in contemporary biometrics is that it has the possibility of transforming the grounds of state exception. The more biometrics codes identity, the less need there is for the state to substantiate it.

The EU immigration “crisis” The following will think of this infrastructural antinomy through elements of what is read as an immigration crisis in the European Union. Although the European Commission declared in March 2019 that the European migration

Exceptional biometrics  113 crisis was over, this actually refers to the state of governmentality over the exception that migration represents. Biometrics here, literally “life measure,” is not just a way to identify and classify according to governmental demands; it also functions to differentiate measure around how “crisis” is characterized and remedied. First, I  will provide a brief overview of the conditions that produce “crisis” numbers in state assessment. These inexorably reveal some of the peculiarities of sovereignty in the EU project, cast against the structural antagonisms of globalization and geopolitics in the contemporary period. Second, I will examine the stakes in the technical refinements of biometrics as symptomatic of the crisis in “crisis” where migrants are concerned. It is not just that the migrant is an exception that measures citizen subjectivity by contrast, but that the biometrical borders redefine sovereign demands to the point that they no longer meet the remit of state exception and exceptionalism. The effect is not one of borderlessness but of state involution whereby state failure elsewhere circulates as a more general fragility and precarity. The conclusion will clarify what this means for “measuring” the future of the state. The standard narrative of the migrant crisis in Europe links it to the Arab Spring of 2011 and the subsequent civil war in Syria, which produced millions of refugees and deep and immediate stress for countries in the region. By 2015, the serious questions for the EU raised by large-​scale population movement, principally from West Asia and North Africa to Southern and Eastern Europe and then to Europe as a whole, precipitated major controversies about European cooperation, the legacies of colonialism and imperialism, systemic and infrastructural racism and ethnocentrism, and the place of nationalism in a Europe that had putatively exited the belligerent versions of statehood characteristic of the first half of the twentieth century. Obviously, each element of such an assessment offers its own degree of complexity, and no summary here can do justice to the vast amount of research already dedicated to problems and solutions on this subject.2 Some of these studies, for instance, have noted the links between the different approaches to migration in the region and the uneven experiences of the financial crisis of 2007–​2008, not just across the economies of the Global South but within Europe itself. Further analysis of the geopolitical history of migration draws attention to the tense foundations of the EU (with sometimes sharp and near irresolvable differences among member states) as well as to the more immediate “blowback” to a U.S.-​led “coalition” adventure in Iraq and the collective destabilization of Libya and Syria that fueled a mass exodus of refugees. Indeed, the more one looks at migration as a constitutive history, the place of Turkish migrants, for instance, in the robust expansion of the German economy from the 1960s on, the more vexed and problematic the picture of the crisis becomes. Even from these opening remarks, it is clear the crisis is, in fact, multiple and disjunct and implies contrasting histories for which the concept of states of exception in itself—​as drawn principally from Carl Schmitt and Giorgio Agamben—​cannot hope to be sufficient or satisfactory.3 Nevertheless, the paradigm can offer specific avenues of explication and articulation that

114  Peter Hitchcock can be used to address the effulgence of biometrics in the securitization of migration. The idea is to interrogate the symptomatic valence of biometrics in the meaning of migrancy for the EU and its member states. Thus, while we can identify concrete causal effects, the biometrical provides an alternative measure of identity and identification that reads emergency across and beyond individual events, even as these provide the texture of exception in state formation. On the one hand, the technological development of biometrics is consistent with the pivot of necessity in structuring the demand of exception (basically, migration appears to compel secure identification and classification); on the other, biometrics instills a countermand (not just in its dual use for migrants and citizens but in the contradictions of the very idea of utility) that opens new forms of insecurity at the space and place where it is otherwise guaranteed—​the border. The fate of the refugees remains central both because of the depth of the crisis and because they signal the strength or weakness of home, belonging, and safe haven in the world system. How one measures population movement or its prohibition is also a metric of state viability and cooperative possibility. This is why the biometric is not outside the antinomies of state—​such as security of state versus human security, sovereign versus individual claims, population control versus labor demand, etc.—​ which the discourse of exception otherwise seeks to remedy. Ostensibly, the EU took on the refugee crisis not as a challenge to its core rationale but as a confirmation of its values and responsibilities. The German Chancellor, Angela Merkel, was especially concerned to show that the EU, and Germany in particular, was willing and able to alleviate the trauma and hardship of new arrivals fleeing civil strife and combat zones. Quickly, however, the numbers began to challenge the commitment. In 2012, Germany accepted 77,000 refugees, but by 2016 this annual figure had risen to 745,000. The 1985 Schengen Agreement had enshrined the idea of free movement within the EU, but the scale of displaced persons seeking refuge made member states question their national prerogatives. Germany encouraged EU accession negotiations with Turkey both to limit the number of refugees passing on to the European Union and to accept refugees who had attempted this journey illegally without necessarily going through Turkey. In return, the EU offered six billion euros in aid to Turkey to handle the welfare of millions of Syrian refugees (the amount of aid received and the number of formally designated refugees are disputed). Two germane elements of policy are immediately discernible. First, it is clear that in terms of the EU’s southern border, the Union attempted to limit movement to the country of arrival according to what is called the Dublin III Regulation.4 Wherever migrants might end up, the provision affirms that the processing priority of asylum is to be conducted in the country of first entry. Pertinently, the regulation is girded biometrically, that is, guaranteed initially by fingerprinting. Second, the crisis recalibrates the meaning of border security so that an individual state’s borders can be realized along another, in this case at points of entry into the region as a whole.

Exceptional biometrics  115 Securitization of the latter kind comes with an alibi: that the integrity of the EU means deploying its poorer and southern states as a buffer zone for the wealthier states to the north and west. In turn, this changes the priorities of first entry states. In Italy, for instance, the policy had been to rescue refugees at sea from Libya and other African states (over 100,000 in 2014 alone) who had attempted the journey across the Mediterranean in overloaded or ill-​equipped vessels, and bring them to sanctuary. But with a hardening of relocation nostrums, Italy emphasized patrolling rather than rescue, even though up to 3,000 refugees had died in 2014, attempting a Mediterranean crossing.5 In effect, the border was being secured by the possibility of death beyond it. The production of exception is operative in both examples. The defense of the Dublin Regulation was ostensibly to simplify its aims in the cause of securitization. By enforcing, for example, the principle of asylum responsibility to the country of entry to the EU, the Union hoped to head off the bureaucratic tangle of multiple applications in different states. As the number of migrants increased during the crisis, both regular and irregular, documented or otherwise, or others in process and/​or in detention, sovereign interests began to grate against the solidarity of the bloc. The uneven distribution of power within the EU had been acknowledged for some time, but distribution of refugee responsibility encouraged sovereign defensiveness and discrimination against migrants as “others,” “non-​European,” “racially or ethnically different,” “non-​Christian,” “Muslim,” and “temporary or transient.” Soon Hungary declared its share of the migrant crisis was disproportionate and that it would no longer accept the return of “first country” refugees for processing. Interestingly, Germany at this time invoked the sovereignty clause of the Dublin Regulation to assume responsibility for Syrians stranded by Hungary’s decision, something that would be rolled back in subsequent years.6 The tactical sovereignty in both cases indicates an element of the lacuna in law, the possibility of suspension, which Agamben links to the state of exception. I have argued elsewhere that Agamben’s personal exception to border control is not unproblematic.7 Here, however, Agamben’s notion of the state of exception as “the no-​man’s-​land between public law and political fact” usefully characterizes the hesitation of states in the EU before the prospect of mass migration.8 It is a space of decisive indecision, in which the Schengen Agreement, the Dublin Regulation, the UN 1951 Refugee Convention, and the 1967 Protocol all seem to have their meaningful consistency rendered antagonistic by perceived state emergency. To be sure, the EU as a whole has not pursued an outright suspension of its laws regarding immigrant rights in relation to citizen subjectivity. Nevertheless, the prospect of large-​scale refugee settlement has affected the balance of contradictions among member states that have subsequently sought advantage or restitution using sovereign priorities. The familiar vehicle for this disjunction has been populist nationalism. In Hungary, for instance, Prime Minister Viktor Orbán has insistently sounded alarms about the threat immigration represents, that it brings crime

116  Peter Hitchcock and terrorism and “endangers our way of life, our culture, our customs and our Christian traditions.”9 In the United Kingdom, the recent Conservative Party slogan, “Take Back Control” offered a similar outburst of nationalist exceptionalism, with “Get Brexit Done” smoothing the path from exception to hard border autonomy.

EU immigration and biometrics On the surface, biometrics merely polices the crisis, but its logic of exception tends to reinstitute the conditions of governmentality thought to have been rendered inconsequential by regional solidarity and collaboration. Orbán likes to invoke the nationalist pride in Hungarian opposition to the Habsburgs and later to the Soviet Union (in 1956). The struggle against EU-​ mandated immigrant quotas is for Orbán and his supporters a question of national security, and the robust fencing along the country’s southern border offers an exclamation point in that regard. This has come in tandem with biometric assurance, specifically the introduction in 2016 of a biometric eID card, containing fingerprint and signature data. The breakout and adoption of this system has been slower than expected, yet it signals a putative disambiguation of who is a Hungarian from those who are not. Biometric systems are also being rolled out at Hungary’s major airports, in this case through a project sponsored by the Home Affairs Fund of the EU. Secunet “Easygates” are not primarily designed to keep migrants out but serve to ease the entry and exit of Hungarian citizens who have voluntarily (and usually at a cost) provided biometric cross-​referencing (facial recognition, fingerprints, and biographical details, etc.). This is central to the dual-​use logic immanent to biometrics. What sutures the citizen to the state is a data-​heavy security protocol that can, as a matter of emergency, be used to track movement and participation in a variety of ways (like the use of Aadhaar ID cards in India). “Easygates” are now available in several other EU member states, as well as countries like Iceland in the European Economic Area (EEA).10 Indeed, as a response to the fracturing of security interests in the face of the refugee crisis, the EU has pushed ahead with an even more ambitious biometric program. In April 2019, the EU voted to initiate the Common Identity Repository (CIR), designed to unify and cross-​reference biometrically the records of over 350 million EU and non-​EU citizens. Described as the “EU Interoperability framework for border management systems,” with the motto “Secure, Safe and Resilient Societies,” CIR aims to reestablish European integration, while processing, at a much greater scale, the movement of people across the member states.11 “Interoperability” has specific objectives like allowing “identity checks of third-​country nationals [TCNs], on the territory of a Member State, by police authorities”; it also has the ability to streamline access by law enforcement authorities to non-​law enforcement information systems at EU level. The program is explicit that “the CIR repository

Exceptional biometrics  117 for third-​country nationals would enable identification of TCNs without (proper) travel documents.”12 It is hard not to read the details of this project as anything other than a directive of sovereign differentiation, the evolution of a technological capacity to “manage” the indeterminacy of the migrant/​refugee within the safety of data, and the interdiction they permit. While privacy laws within the EU are robust, the common logic of exception means “provisions for emergency situations will be made.”13 In other words, the technology embodies the possibility of suspension of the very protections it claims to “secure.” Securitization, at the level of contemporary biometrics, is a means to measure the conditions of exception, as sovereignty decides.

Externalization as deterrence From the perspective of shifting or permeable borders, the EU has also pursued a second and complementary process of externalization. This means that rather than face the institutional and administrative burdens associated with arrival (and the corresponding public media disasters related to the “occasional” mistreatment of refugees and asylum seekers, the conditions of detention centers, and the traumatic images of possible deportations and relocations), the EU has worked strenuously with foreign governments and NGOs to preempt migration in the first place. Externalization is, in fact, a necessary component of a securitization suite, one that defines security in terms of deterrence. It should be noted that the majority of people currently displaced by the upheavals of war and state fragility in North Africa and West Asia remain relatively close to home, either through internal displacement or by relocation in neighboring countries. Nevertheless, the depth of the crisis has led to even more arduous journeys to comparatively stable states further afield and, as we have indicated above, this exception is perceived or characterized as an external threat (the participation of developed states in military intervention elsewhere is matched by the use of military metaphors in beating back migrant “invasions”). Externalization shifts the border well beyond sovereign territory and underlines that “walling” is much more than a physical barrier. As a state policy, externalization can be presented as life-​ saving (crossing the Mediterranean in flimsy and often overcrowded boats has led to thousands of deaths), as securitization (until the technologies described above are perfected, states should not run the risk of various “undesirables”), as a legal imperative (some migration is facilitated by smuggling and human-​ trafficking systems and thus warrants criminal investigation and interdiction), and as a bold display of third-​country internationalism (the EU can trumpet its earnest diplomacy by forging new inter-​state relations).14 Because a foreign person entering a state triggers internationally agreed legal obligations and responsibilities toward displaced people, externalization acts as a preemption of this juridical framework. It is not a suspension

118  Peter Hitchcock of law as such, a sovereign right of exception, yet seeks to void the legal protections of the state by shifting the zone of acknowledgment and engagement. Rather than face the complexities of compliance with UN-​mandated refugee conventions, especially regarding non-​refoulement or return, irregular migration can be contained elsewhere. This is achieved in a number of ways: by paying third countries directly to keep refugees in place; by offering indirect forms of assistance in other matters, particularly around trade; by providing security infrastructure, including materiel for policing and military applications; and by seeking to redefine a third country as safe and as a legitimate first country of asylum. While not a state of exception, externalization is a spatial displacement of its possibility. The push for externalization in the EU began as an acknowledgment of the possible impacts from the Iraq War. In 2003, British Prime Minister Tony Blair proposed “Regional Protection Areas” and “Transit Processing Centers” as intermediary mechanisms for strengthening border protocols in the EU. While these ideas were initially withdrawn, two years later the European Commission laid out Regional Protection Programs and an Asylum Procedures Directive that also promised enhanced protection capacity (not necessarily for refugees but for states that might be their desired refuge). In effect, the externalization efforts evident around the refugee crisis of 2015 were merely an extension and intensification of these policy initiatives. Italy had long been negotiating with Libya to deter boat departures from North Africa (now supplemented by the EU Trust Fund for Africa), while Turkey had already been identified as a buffer or third-​party state to deal with immigration via Greece. By 2016, the EU had reached a formal agreement with Turkey to accept refugees from Greece and become a designated safe third country, thus redirecting Syrians and Iraqis, for instance, from using the Aegean Sea as a bridge to the EU. As noted above, this has come with a financial package that is difficult to scale with the numbers of displaced persons involved. The EU accepts “legal” Syrian migrants from Turkey, but this is a fraction of those sent to Turkey as “irregular” or “undocumented.”15

Externalization and biometrics One of the main ways that externalization reconstellates borders is via the production and expansion of biometric databases that can be administered well beyond the physical infrastructure of conventional border control. Niger, for instance, has been called a new European border because of its adoption of MIDAS (Meaningful Integration of Data Analytics and Services), an immigration database.16 MIDAS is able to process traveler data in real time and can cross-​reference biometric information with over 20 other countries. It is basically watchtower surveillance, primarily to monitor terrorist threats, but it can also be deployed to turn back possible asylum cases before they cross borders. In addition, MIDAS is linked to PISCES (Personal Identification Secure Comparison and Evaluation System). This is a U.S. Department

Exceptional biometrics  119 of State biometric facility installed at Niger’s main airport as a first line of defense. Furthermore, Niger is home to the Mobile Border Post, literally an all-​terrain vehicle that can process visa and passport applications on the move and that is also used for preemptive interdiction using satellite access to biometric databases. In order to facilitate more rigorous and efficient biometric processing beyond its borders, the EU has actively encouraged border police training in third countries. Italy, for instance, is working with Egypt to train officers from all over Africa at the Egyptian Police Academy in Cairo. The money for this comes principally from Italy’s Funds for Internal Security, and, again, emphasizes the reach of externalization. Overall, the European Commission has tripled the funds available to support “countries of origin and transit of migrants,” and biometrics is a key part of this extensive infrastructure. Clearly, there are inherent problems with establishing data and infrastructural outposts of this kind, particularly since they bear comparison to a technologically enhanced colonialism. In the strenuous efforts to situate the refugee crisis elsewhere, the EU has tended to downplay the human rights abuses of states where “new borders” are being established (in addition to Turkey, Egypt, and Niger, generous support for border security has been provided to Chad and Sudan; Belarus has also been a recipient of border aid, but, given continuing political crises, such support is not assured). Libya, in particular, has received renewed attention, particularly after a video surfaced in 2017 of a slave market for forcibly displaced persons otherwise denied the possibility of migration across the Mediterranean. Meanwhile, externalization has not only been a boon to European military suppliers (whose weapons are used both to “secure” migrant exit points and cement authority over internal dissent) but also to the rapidly expanding biometric industry (companies like Veridos, OT Morpho, and Thales have all benefited from EU externalization contracts).17 Just as Frontex (now the European Border and Coastguard Agency) has become a front for migrant exclusion, so externalization extends that front as a series of development and security mechanisms. The Valletta Summit of 2015 produced an Action Plan between 35 African countries and European countries (EU and non-​EU member states) that sanctified externalization across the African continent and included both biometric measures and surveillance. In research in progress, I have discussed the braiding of securitization between finance and border management. This is certainly germane for biometric software development (not just in terms of alternative revenue streams but also regarding data capacity and information retrieval).18 If EU policies on irregular migration constitute zones of exception in externalization, then biometrics is a technological accelerant (cost effective, governmental, and scalable). “Proper” identification is a ground for deterrence and/​or return and, in many ways, is leaner and meaner than a hard border can be. This raises the questions of why is it important to think this through sovereign exception, of the consequences of a biometric geopolitics and of how forcibly displaced

120  Peter Hitchcock persons are counteracting their reduction to a data set elsewhere and to false projections of threat and security.

Exception and biometrics While the use of Agamben’s (and Schmitt’s) theorization of the state of exception in migration studies is not new, the magnitude of displaced peoples in contemporary crises has altered its impress and conceptual nuance. Indeed, it might be said that while the migrant crisis has revealed the limits of EU sovereignty, it has also thrown into relief the edge of thinking of exception, especially around resistance and change. Daria Davitti’s article, “Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’ ” offers a great deal of insight into why an Agambenian approach to migration is pertinent and provocative.19 The “liquification” of borders in externalization is, as here, symptomatic of biopolitical displacement and sovereign doubt. Interestingly, while I  stress the techné of this displacement and regimes of reassignment, Davitti focuses on the “legal thresholds of indistinction” that police what counts as a subject and, by extension, what is disposable or made to disappear (in the violence of state failure, this can be literal and traumatic in the extreme). Are these simply complementary, or do they suggest a greater paradigmatic and critical frisson? In the last part of Davitti’s essay, she examines the European Agenda, rolled out in 2015 to address the sharp increase in deaths resulting from migrants attempting to cross the Mediterranean Sea. As Davitti points out, there is a direct and cynical connection between the EU’s appeals to the language of emergency and humanitarianism and the disavowal of refugee and asylum cases seeking safe haven in Europe. Bare life in the Agamben sense, of course, is overdetermined by a number of factors relating to sovereign decision and juridico-​political structures. Bare life is, indeed, produced and politicized by acts of exclusion, in which “making live and letting die” is constitutive of sovereign power. The question is not whether irregular migration implicates the sovereign production of bare life but where, in the zone of indistinction that obfuscates law and its outside, the migrant now lies? For Agamben, it is enough that the refugee is aporetic: That there is no autonomous space in the political order of the nation-​ state for something like the pure human in itself is evident at the very least from the fact that, even in the best of cases, the status of the refugee has always been considered a temporary condition that ought to lead either to naturalization or to repatriation. A stable statute of the human in itself is inconceivable in the law of the nation state.20 The exceptional and punitive measures of the EU during its migrant emergency would seem to fit that obscure element of Roman law, Homo Sacer, so neatly that Agamben could just as well use this example as that of his actual focus, the state of exception that is the Holocaust. There is no equivalence,

Exceptional biometrics  121 but in the norming of exception, as Agamben puts it, “we are all virtually homines sacri.”21 Davitti notes that in the work of Agamben and Judith Butler, biopower need not consist of explicit decision, but rather facilitates “the emergence of systematic forms of deliberate neglect.”22 A systematicity without consciousness or conscience is an alarming prospect, not least because it would seem to be beyond appeal, sanction, or change. Yet “deliberate neglect” requires deliberation, and the disavowal at stake is perhaps less and more than indistinction and omnipresent exception would allow. The conceptual deployment of exception would seem to require an alternative dimensionality to avoid making the materiality of biopower as indistinct as its zones of desire. Biometrics does not provide the key to the logic of exception in the operations of biopower, but understanding its material instantiation (as life measure) can help to pinpoint what is at stake in contemporary regimes of bios. The efficiencies of biometrical data collection, the registration of what lives as measurable, is a conscious declaration of sovereign power. Nonetheless, as such, it must be read through not just the exception produced in the struggles of displaced peoples but in the relation of those struggles to all of the states that constitute its systematicity. In some ways, this connects to Agamben’s more recent work on economy, especially The Kingdom and the Glory and Creation and Anarchy, which theorize, among other things, economic theology with its idea of oikonomia.23 Yet it has to be noted that even then, Agamben persistently under-​reads the impress of economic structure in differentiating the biopolitics of the present. The indiscernibility that marks the plight of the refugee, for instance, cannot match Agamben’s marked indistinctiveness around how economics work:  “Capitalism, then, is a religion in which faith—​credit—​has been substituted for God. Said differently, since the pure form of credit is money, it is a religion whose God is money.”24 How can we figure biometrics into the economics of the migrant crisis without reducing economic history to a function of metonymy (albeit one that ultimately does not discount Agamben’s or Walter Benjamin’s interventions on “Capitalism as Religion”)? First, to the extent that biometrics is always already an accounting, it is both symptomatic of the effulgence of big data within immaterial labor and a concomitant sign of labor’s persistence beyond it. Biometrics enables a substantial classification of humans and manages bios both in place and in movement. It can be used to surveil, as is clear in the accumulation of biometric data about migrants by the EU, yet it has its own zone of indistinction when it comes to migrant potential. What the migrant brings is the same as any other person, including difference, but a person does not reveal all to biometric design. I do not mean this just in terms of the migrant’s labor and labor power, but in the complex of economic relations that make up the migrant’s agency and capacity for decision. True, there are other ways to pursue this measurement (interviews, background checks, etc.), but, in general, such assessment proceeds from a basic lack of decisive information, and this inevitably opens the door to ideological shortcuts, stereotypes, and prejudice of

122  Peter Hitchcock various kinds. Threat protection may substantiate biometrics, but biometrics mediates externalization precisely because it cannot gauge the figure of the migrant as more than a desperate subjectivity. It is the limits of identification that pushes the border outward, and this is a doubt not just of sovereign right but of an economic calculus. In the intricacies of EU bureaucracy, which are many and obtuse, the question of economic strategy looms large. If the border is a method, as Mezzadra and Neilsen articulate it,25 it is primed by specific costs of accumulation. Securitization of the border, from this perspective, is a crass strategy of accumulation that reads the traumatic effects of state failure elsewhere as a cruel amalgam of prohibition and possibility. The antinomy of EU migrant policy exists in its belief that it can freely choose between the two. Second, and more significantly, the elsewhere of the migrant is not marked by the instrumentality of externalization but by the legacies of colonialism and anti-​colonialism in the Global South. The history of these struggles speaks to the prescience and the past of European adventures in spatial control. The paroxysms of the postcolony in Libya, Syria, and Iraq, for instance, are not some regional pathology (or the “Muslim madness” of long-​standing Islamophobia and racism), but materially imbricated in the vexed politics of postcolonialism. One could argue that the failure of such states is merely the failure of sovereignty and nation-​statehood in general, which has more than a kernel of truth but offers little solace to those living this trauma and upheaval day to day. Another possibility is to advance the idea that regional conflagrations of this kind are not the inexorable failure of statecraft in relatively new and independent nations but are an effect of the very fear of their success. In a world of combined and uneven development, structural adjustment, and austerity measures, fragile states teeter on the edge of economic and social calamity. But surely, the argument goes, the refugee and asylum seeker are not only fleeing from war and social strife but from the consequences of brutal authoritarianism, corruption, and a comparatively local state of exception. The decision to move at all is a trauma in itself and, even in the depth of the crisis, most displaced persons, as noted, have stayed as close as possible to home and to the places where they feel they can belong. The fact that so many people sought other refuge in 2015–​2016 is a testimony not to greed or opportunism but to the dire facts of the situation. Both local and long-​ distance displacement necessitate struggle, something registered in the travails of everyday existence (establishing primary conditions of sustenance) and in claiming basic human rights. And, in facing the hostility of some European citizens to such a claim on rights, a long history of colonial inequality is never far from view.

Conclusion In light of struggles discussed here, it might seem quaint or irrelevant to discuss biometrics at all. As an instrument of biopower, it is far from providing

Exceptional biometrics  123 raiment for any oppressed or victimized constituency. It is neither simply the technology of last resort nor the resort of techné in and of itself. Yet it provides an important heuristic on population management and a glimpse into the possible future of crisis control. Biometrics is invoked to perform the impossible, to securitize life as it is lived from any and all conditions that might challenge the alleged substance of such life. All manner of entangled factors are left out (the causes of crisis, the nature of self-​identification, the material conditions of socialization). How much identity is enough to secure the viability of a state, even the most powerful socio-​economic formations? When refugees give up their information they do not answer this question, but they ask it again.

Notes 1 Wendy Brown, Walled States, Waning Sovereignty (New  York:  Zone Books, 2010). 2 Nicholas De Genova, ed., The Borders of “Europe”:  Autonomy of Migration, Tactics of Bordering (Durham, NC:  Duke University Press, 2017); Hakim Abderrezak, Ex-​Centric Migrations:  Europe and the Maghrebin Mediterranean Cinema, Literature, and Music (Bloomington:  Indiana University Press, 2016); Ariane Chebel d’Appollonia, Migrant Mobilization and Securitization in the US and Europe: How Does It Feel To Be a Threat? (London: Palgrave, 2015). 3 See, for instance, Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005); see also, Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1934], trans. George Schwab (Cambridge, MA: MIT Press, 1985). 4 For more on the Dublin regulation see, for instance, Mihai Alexandrescu (ed), The Refugee Crisis in the European Union: Between Fundamental Human Rights and the Efforts Towards Securitization (Cluj-​Napoca: CA Publishing, 2016). 5 See Tara Brian and Frank Laczko, eds., “Fatal Journeys:  Tracking Lost Lives during Migration,” International Organization for Migration, 2014, accessed May 25, 2020, www.iom.int/​files/​live/​sites/​iom/​files/​pbn/​docs/​Fatal-​Journeys-​Tracking-​ Lives-​Lost-​during-​Migration-​2014.pdf. 6 See Asylum Information Database, “Hungary:  Dublin Transfers Suspended by Germany,” August 29, 2017, accessed May 25, 2020, www.asylumineurope.org/​ news/​29-​08-​2017/​hungary-​dublin-​transfers-​suspended-​germany. 7 See Peter Hitchcock, “A World in ‘Small Hands’? Globalization as Risk and Rights,” in Writing Beyond the State: Post-​Sovereign Approaches to Human Rights in Literary Studies, eds. Alexandra S.  Moore and Samantha Pinto (London: Palgrave, 2020), 137–​151. 8 Agamben, State of Exception,  1–​2. 9 See, for instance, “PM Orbán: We Must Protect our Religious Traditions in Order to Keep Hungary Hungarian,” About Hungary, May 18, 2018, accessed May 25, 2020, http://​abouthungary.hu/​news-​in-​brief/​pm-​orban-​we-​must-​protect-​our-​ religious-​traditions-​in-​order-​to-​keep-​hungary-​hungarian/​. 10 Secunet, “Easygate,” accessed May 25, 2020, www.secunet.com/​en/​products-​ solutions/​easygate/​.

124  Peter Hitchcock 11 Development is ongoing. See, for instance, Grace Dobush, “The EU Wants to Build One of the World’s Largest Biometric Databases. What Could Possibly Go Wrong?” Fortune, May 1, 2019, accessed March 17, 2020, https://​fortune.com/​ 2019/​05/​01/​eu-​biometric-​database-​india/​. 12 European Commission, “EU Interoperability Framework for Border Management Systems: Secure, Safe and Resilient Societies,” Brussels, June 5, 2018, accessed May 25, 2020, www.securityresearch-​cou.eu/​sites/​default/​files/​02.Rinkens.Secure%20 safe%20societies_​EU%20interoperability_​4-​3_​v1.0.pdf. 13 European Commission, “EU Interoperability Framework for Border Management Systems.” 14 For further discussion see, for instance, Ayşen Üstübici, Inka Stock, and Susanne Schultz, eds. Special issue “Externalization at Work,” Comparative Migration Studies 8, no. 4 (2020). 15 For the original deal, see European Council, “EU-​Turkey Statement,” March 18, 2016, accessed May 25, 2020, www.consilium.europa.eu/​en/​press/​press-​releases/​ 2016/​03/​18/​eu-​turkey-​statement/​. 16 See, for instance, Giacomo Zandonini, “Biometrics:  The New Frontier of EU Migration Policy in Niger,” The New Humanitarian, June 6, 2019, accessed March 17, 2020, www.thenewhumanitarian.org/​news-​feature/​2019/​06/​06/​biometricsnew-​frontier-​eu-​migration-​policy-​niger. 17 See Mark Akkerman, Expanding the Fortress (Amsterdam:  Transnational Institute, 2018). 18 See Peter Hitchcock, “The Right to Securitization,” in Technologies of Human Rights Representation, ed. Alexandra S.  Moore (Albany:  SUNY Press, forthcoming). 19 See Daria Davitti, “Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’,” European Journal of International Law 29, no.  4 (2018): 1173–​1196. 20 Giorgio Agamben, Means without End, trans. Vicenzo Binetti and Cesare Casarino (Minneapolis: University of Minnesota Press, 2000), 18. 21 Giorgio Agamben, Homo Sacer:  Sovereign Power and Bare Life, trans. Daniel Heller Roazen (Stanford, CA: Stanford University Press, 1998), 115. 22 Davitti, “Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’,” 1183. 23 See Giorgio Agamben, The Kingdom and the Glory: For a Theological Genealogy of Economy and Government, trans. Lorenzo Chiesa and Matteo Mandarini (Stanford, CA: Stanford University Press, 2011); Giorgio Agamben, Creation and Anarchy:  The Work of Art and the Religion of Capitalism, trans. Adam Kotsko (Stanford, CA: Stanford University Press, 2019). 24 Agamban, Creation and Anarchy, 61. 25 See Sandro Mezzadra and Brett Neilson, Border as Method or, the Multiplication of Method (Durham, NC: Duke University Press, 2013).

Bibliography Abderrezak, Hakim. Ex-​Centric Migrations: Europe and the Maghrebin Mediterranean Cinema, Literature, and Music. Bloomington: Indiana University Press, 2016. Agamben, Giorgio. Creation and Anarchy:  The Work of Art and the Religion of Capitalism, translated from Italian by Adam Kotsko. Stanford, CA:  Stanford University Press, 2019.

Exceptional biometrics  125 Agamben, Giorgio. Homo Sacer:  Sovereign Power and Bare Life, translated from Italian by Daniel Heller Roazen. Stanford, CA: Stanford University Press, 1998. Agamben, Giorgio. The Kingdom and the Glory:  For a Theological Genealogy of Economy and Government, translated from Italian by Lorenzo Chiesa and Matteo Mandarini. Stanford, CA: Stanford University Press, 2011. Agamben, Giorgio. Means without End, translated from Italian by Vicenzo Binetti and Cesare Casarino. Minneapolis: University of Minnesota Press, 2000. Agamben, Giorgio. State of Exception, translated from Italian by Kevin Attell. Chicago: University of Chicago Press, 2005. Akkerman, Mark. Expanding the Fortress. Amsterdam: Transnational Institute, 2018. Alexandrescu, Mihai, ed. The Refugee Crisis in the European Union: Between Fundamental Human Rights and the Efforts Towards Securitization. Cluj-​Napoca: CA Publishing, 2016.Asylum Information Database. “Hungary:  Dublin Transfers Suspended by Germany,” August 29, 2017. Accessed May 25, 2020. www.asylumineurope.org/​ news/​29-​08-​2017/​hungary-​dublin-​transfers-​suspended-​germany. Brian, Tara, and Frank Laczko, eds. “Fatal Journeys:  Tracking Lost Lives during Migration.” International Organization for Migration, 2014. Accessed May 25, 2020. www.iom.int/​files/​live/​sites/​iom/​files/​pbn/​docs/​Fatal-​Journeys-​Tracking-​LivesLost-​during-​Migration-​2014.pdf. Brown, Wendy. Walled States, Waning Sovereignty. New York: Zone Books, 2010. Chebel d’Appollonia, Ariane. Migrant Mobilization and Securitization in the US and Europe: How Does It Feel to Be a Threat? London: Palgrave, 2015. Davitti, Daria. “Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’.” European Journal of International Law 29, no. 4 (2018): 1173–​1196. De Genova, Nicholas, ed. The Borders of “Europe”: Autonomy of Migration, Tactics of Bordering. Durham, NC: Duke University Press, 2017. Dobush, Grace. “The EU Wants to Build One of the World’s Largest Biometric Databases. What Could Possibly Go Wrong?” Fortune, May 1, 2019. Accessed March 17, 2020. https://​fortune.com/​2019/​05/​01/​eu-​biometric-​database-​india/​. European Commission. “EU Interoperability Framework for Border Management Systems: Secure, Safe and Resilient Societies.” Brussels, June 5, 2018. Accessed May 25, 2020. www.securityresearch-​cou.eu/​sites/​default/​files/​02.Rinkens.Secure%20 safe%20societies_​EU%20interoperability_​4-​3_​v1.0.pdf. European Council. “EU-​Turkey Statement,” March 18, 2016. Accessed May 25, 2020. www.consilium.europa.eu/​en/​press/​press-​releases/​2016/​03/​18/​eu-​turkey-​ statement/​. Hitchcock, Peter. “The Right to Securitization.” In Technologies of Human Rights Representation, edited by Alexandra S. Moore. Albany: SUNY Press, forthcoming. Hitchcock, Peter. “A World in ‘Small Hands’? Globalization as Risk and Rights.” In Writing Beyond the State: Post-​Sovereign Approaches to Human Rights in Literary Studies, edited by Alexandra S. Moore and Samantha Pinto, 137–​151. London: Palgrave, 2020. Mezzadra, Sandro, and Brett Neilson. Border as Method or, the Multiplication of Method. Durham, NC: Duke University Press, 2013. Moore, Alexandra S., ed. Technologies of Human Rights Representation. Albany: SUNY Press, forthcoming. Moore, Alexandra S. and Samantha Pinto, eds. Writing Beyond the State:  Post-​ Sovereign Approaches to Human Rights in Literary Studies. London:  Palgrave, 2020.

126  Peter Hitchcock “PM Orbán:  We Must Protect our Religious Traditions in Order to Keep Hungary Hungarian.” About Hungary, May 18, 2018. Accessed May 25, 2020. http://​ abouthungary.hu/​ n ews-​ i n-​ b rief/​ p m-​ o rban- ​ w e- ​ must- ​ p rotect- ​ o ur- ​ r eligious-​ traditions-​in-​order-​to-​keep-​hungary-​hungarian/​. Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty [1934], translated from German by George Schwab. Cambridge, MA: MIT Press, 1985. Secunet, “Easygate.” Accessed May 25, 2020. www.secunet.com/​en/​products-​solutions/ easygate/​. Üstübici, Ayşen, Inka Stock, and Susanne Schultz, eds. Special issue “Externalization at Work.” Comparative Migration Studies 8, no. 4 (2020). Zandonini, Giacomo. “Biometrics:  The New Frontier of EU Migration Policy in Niger.” The New Humanitarian, June 6, 2019. Accessed March 17, 2020. www. thenewhumanitarian.org/ ​ n ews- ​ f eature/ ​ 2 019/​ 0 6/​ 0 6/​ b iometrics-​n ew-​ f rontiereu-​migration-​policy-​niger.

Part II

The liberal state Populist, authoritarian, and corporate challenges

6  A theory of populist democracy Nadia Urbinati

I would like to start this chapter with a biographical piece of information that may help clarify the contextual and analytical frame of what I think the possibility of populism in power is—​namely, the shaping of a new form of representative democracy. My interest in populism dates back to the early 1990s and the decline of Italian mass parties and, in effect, party democracy.1 The sudden and spectacular decline of the Italian parties was the outcome of two concomitant factors that would soon prove pivotal to the success of populism (both as a movement of contestation and as a government) in other democratic countries: the collapse of ideological parties with the end of the Cold War and the decline of the party system followed by the volatility of party loyalties.2 Partisan identities have been persistently associated with corruption, not only in Italy. As Nancy Rosenblum has masterfully documented in relation to the United States, anti-​partyism was ingrained in representative government since its inception in the eighteenth century, and the acceptance of a loyal opposition never went unchallenged.3 With this broad historical background in mind, I see party democracy and populist democracy as contemporary expressions of the complex dynamic internal to representative politics and a reiteration of what Frances McCall Rosenbluth and Ian Shapiro term the “standard story [that] democracy is fundamentally at odds with party-​ based representative democracy,” although it cannot avoid producing parts and parties.4 The myth of a pristine unitary popular sovereignty without parts and parties lies at the deep core of the populist success. It also reverberates in the populist project of devising a different modality of democracy, one that is made of movements rather than parties, but in view of re-​unifying the people as one. To paraphrase Pierre Rosanvallon, whereas the organization of political life in a representative democracy “rests on a fiction” that is felt as necessary (“the assimilation of the majority with unanimity”), in a populist democracy that fiction solidifies to become identified with a specific part of society or a bloc of movements combining various claims and the largest number possible of electors. Seen from the perspective of party democracy, populism represents a redirection of the notion of the people toward that

130  Nadia Urbinati pristine myth of assimilation, but with a twist: populism in power activates a phenomenology of substitution of the whole with one of its parts, rather than a resurrection of the general will of the body politic. Its success in government would entail replacing the meaning of the people and its principled generality. This is the background of the populist form of democracy that I illustrate in this chapter, in which I study the implications of populism’s reappearance in relation to constitutional democracy.5

Constitutional democracy as the populist alter Constitutional democracy is the political order that promises to protect basic rights (which are essential to the democratic process) by limiting the power of the majority in government, by providing stable and regular opportunities for changing majorities and governments, by guaranteeing social and procedural mechanisms that permit the largest possible part of the population to participate in the game of politics, and by influencing decisions and changing who makes decisions. It does this through the separation of powers and the independence of the judiciary. Stabilized after 1945 with the defeat of mass dictatorships, constitutional democracy was meant to neutralize the problems that populism is now trying to capitalize on.6 These are: (1) the resistance of democratic citizens to political intermediation, and to organized and traditional political parties in particular; (2) the majority’s mistrust of the institutional checks on the power that the majority legitimately derives from the citizens’ vote; and (3) the climate of distress with pluralism, or with the views I  argue, that representation is the terrain on which the populist battle over these issues takes place. Populism is like a litmus test of the transformations of representative democracy from within it.7 Let me try to summarize the theory I will put forth in this chapter. I argue that populist democracy is the name of a new form of representative government that is characterized by two phenomena: a direct relation between the leader and those in society whom the leader defines as the “right” or “good” people or simply “the people” against the non-​popular parts of society; and the superlative authority of the audience. Its immediate targets are the “obstacles” to the development of those phenomena: intermediary opinion-​ making bodies, such as parties; established media; and institutionalized systems for monitoring and controlling political power. The former two pertain to the broad domain of the public forum (opinion formation and group associations), while the last one pertains to the domain of decision-​making within state institutions. The result of these negative and positive stances is the physiognomy of populism as an interpretation of “the people” and “the majority” that is tainted by an undisguised—​indeed, an enthusiastic—​politics of partiality and the substitution of the whole with one of its parts. This partiality can easily achieve the form of factionalism and, thus, disfigure the rule of law (which requires that government officials and citizens are bound by and act consistent with the law), and also the division of powers, which, taken

A theory of populist democracy  131 together, include a reference to basic rights, democratic processes, and criteria of justice or right. That these elements form the core of constitutional democracy does not imply they are naturally identical to democracy as such. Their intertwinement occurred through a complex, often dramatic, and always conflictual historical process, which was (and is) temporal, open to transformation, and finite. It can be revised and reshaped. Populism is one form this process of revision and reshaping can take, and it starts with the contestation of representative democracy as party democracy.8 Populists want to replace party democracy with populist democracy; when they succeed, they stabilize their power through unrestrained use of the means and procedures that party democracy offers. Specifically, populists promote a permanent mobilization of the public and the exaltation of the sovereignty of the audience in support of the elected leader in government; or they amend the existing constitution in ways that reduce constraints on the decision-​making power of the majority. In the words of Andrew Arato, populism “seeks to occupy the space of the constituent power.”9 There are unquestionably social, economic, and cultural reasons for the success of populist proposals in our democracies. One could claim that their success is tantamount to an admission that party democracy has failed to deliver on the promises made by constitutional democracies after 1945. Among the unfulfilled promises, two in particular militate in favor of populism’s rhetoric and electoral successes: the growth of social and economic inequality, so that for a large part of the population there is scant or no chance to aspire to a dignified social and political life; and the growth of a rampant and rapacious global oligarchy that makes sovereignty a phantom. These two factors and the resentment they fuel are intertwined; they are a violation of the promise of equality, and they render constitutional democracy in urgent need of critical self-​reflection on what Norberto Bobbio calls “its failure to put an end to oligarchic power.”10 The dualism between “the few” and “the many,” and the anti-​establishment ideology that fattens populism, comes also from these unfulfilled promises. This chapter presumes this set of socio-​economic conditions, although its goal is not studying why populism grew, but how it transforms (indeed, disfigures) representative and constitutional democracy.

An ambiguous term The term “populism” itself is ambiguous and is difficult to define in a sharp and uncontested way. This is because it is not an ideology or a specific political regime but rather a representative process, through which a collective subject is constructed so that it can achieve power. Even though it is, as Chantal Mouffe stresses, “a way of doing politics which can take various forms, depending on the periods and the places,” populism is incompatible with non-​democratic forms of politics.11 This is because it frames itself as an attempt to build a collective subject through people’s voluntary consent and to question a social

132  Nadia Urbinati order in the name of the people’s interests. According to the Oxford English Dictionary, populism is a type of politics that seeks to represent the interests and wishes of ordinary people “who feel that their concerns are disregarded by established elite groups.”12 There are two predefined players in this definition: the ordinary people and the established political elites. The thing that defines and connects these two players is the feeling of the former toward the latter—​a feeling that a representative leader intercepts, exalts, and narrates. Populism involves an exclusionary conception of the people, and the establishment is the externality thanks to which, and against which, it conceives itself. The dynamic of populism is one of rhetorical construction. It involves a speaker interpreting the claims of dissatisfied groups and unifying them in a narrative and, above all, his or her person. In this sense, as Ernesto Laclau has noted, all populist governments take the name of their leader.13 The outcome is a kind of movement that, if asked to explain what it is that makes it count as the people’s voice, it answers by naming the people’s enemies.14 The interpretation I advance corrects Margaret Canovan’s divide between populism in “economically backward” societies (where populism can supposedly stretch to give birth to Caesaristic leaders) and populism in modern Western societies (where it can supposedly exist even without a leader).15 According to Canovan’s framework, Western societies enjoy a kind of exceptionality that makes “populism” almost indistinguishable from electoral cases of so-​called silent majorities that are courted and conquered by skillful candidates and catchall parties.16 My interpretation of populism as a transformation of representative democracy is meant to challenge this view. In my theory, all populist leaders behave the same, whether they are Western or not. That said, in societies that are not yet fully democratic, the representative ambitions of populist leaders can subvert the existing institutional order (though they can hardly make the country a stable democracy).17 This is what happened with Italian fascism in the 1920s, and with the forms of caudillismo and dictatorship that one sees at work in Latin American countries. Furthermore, I hold that before they come to power, all populist leaders build their popularity by attacking mainstream parties and politicians from the Right and the Left. Once they have attained power, they reconfirm their identification with “the people” on a daily basis by convincing their audience that they are waging a titanic battle against the entrenched establishment to preserve their (and the people’s) “transparency” and to avoid becoming a new establishment. Developing a direct relation to the people and the audience is essential for this purpose. Thus, Hugo Chávez devoted more than 1,500 hours vilifying capitalism on Alo Presidente, his own TV show;18 Silvio Berlusconi was for many years a daily presence on both his private television stations and Italian state television; and Donald Trump is on Twitter night and day. The representative construction of populism is rhetorical, and it is independent of social classes and traditional ideologies. It claims to be situated beyond the Left–​Right divide and above all an expression of democratic action because the creation of the populist discourse occurs in public, with

A theory of populist democracy  133 the voluntary consent of the relevant protagonists and with the voluntary consent of the audience.19 With all of this in mind, the central question I have is the following:  what kind of democratic results does populism construct? My answer is that today, representative democracy is both the environment in which populism develops, and its target, or the thing it claims its ruling power against. Populist movements and leaders compete with other political actors with regard to the representation of the people. They seek electoral victory in order to prove that “the people” they represent are the “right” people and that they deserve to rule for their own good. The question that interests me is, thus, how populism tries to transform itself into a new form of representative government. In the literature on populism, populism is often opposed to representative democracy. It is associated with the claim of popular sovereigns to immediate power. Sometimes it is also connected to direct democracy. I argue, by contrast, that populism springs from within representative democracy and wants to construct its own representative people and government. Populism in power does not challenge the practice of elections but rather transforms it into the celebration of the majority and its leader and into a new form of elitist governing strategy, based on a (supposedly) direct representation of the people by the leader. On this framing, elections work as a plebiscite or acclamation; as such, they are generously practiced rather than abolished, along with other institutions of popular will, like referenda and plebiscites. At any rate, populist elections do what they are not supposed to: to show what is ex ante taken to be the right answer and serve as a confirmation of the right winners.20 The good majority is, therefore, already there, waiting to be brought to the surface by the right leader. This makes populism a chapter in the larger story of the formation and substitution of elites. As long as we conceive of populism as solely a movement of protest or a narrative, we cannot see this fact. But when we consider populism’s manifestations once it is in power, these other realities become plainly evident. Alternatively, we might say we can see things better when we analyze what populism does: in particular, when we ask how it changes or reconfigures the procedures and institutions of representative democracy.

The frame of democratic diarchy The interpretation of populism as a new kind of mixed government, which I propose in this chapter and the book Me the People, profits from the diarchic theory of representative democracy I  developed previously in Democracy Disfigured.21 This theory understands the idea of democracy as a government by means of opinion. Representative democracy is diarchic because it is a system in which “will” (by which I mean the right to vote, and the procedures and institutions that regulate the making of authoritative decisions) and “opinion” (by which I  mean the extra-​ institutional domain of political judgments and opinions in their multifaceted expressions) exert a mutual

134  Nadia Urbinati influence on each other but remain independent.22 The societies in which we live are democratic not only because they have free elections that are contested by two or multiple parties, but because they also promise to allow for effective political rivalry and debate among diverse and competing views. The use of representative institutions—​a free and multiple media, as well as the regular election of representatives, political parties, and so on—​allows time for political judgments to be formed and for those to inform voting. It also allows time for decisions to be reviewed, rethought, and—​if necessary—​changed. While direct democracy collapses the time between will and judgment, and so exalts the moment of decision, representative democracy teases the two apart. In so doing, it opens up the political process to the formation and operation of public opinion and rhetoric. In placing our faith in the capacities of representation in political life, we are exploiting an ideological mechanism that allows us to use time as a resource in guiding our politics. Populism wants to fill the gap that keeps distinct and distant the forum and the institutions, the public and the decision-​making power. Pivotal to this is the direct relationship that the leader establishes and maintains with the people. This is the means through which populist politics blurs the democratic diarchy. Focusing on the diarchy is also useful to detect the difference in populism’s behavior. While in opposition, it stresses the antagonism between the many and the few, and expands its audience by denouncing constitutional democracy for favoring the formation of an establishment. But once it gets into power, populism works incessantly to prove that its ruling leaders are an incarnation of the voice of the people and should stand against and above all other representative claimants in order to repair the faults of constitutional democracy. Thus, it moves from oppositional politics to oppositional rhetoric in the service of a unitary vision of the people embodied in a decisionist government. Populists in power testify to the following process: because the people and the leader have effectively merged, and no intermediary elite sets them apart, the role of deliberation and mediation can be drastically reduced, and the will of the people can exercise itself more robustly. This is what makes populism different from demagoguery. Populism in representative democracies is structured by the trope of “unification versus pluralism”; this same trope appeared in ancient demagoguery in relation to direct democracy. But the impact of the populist’s appeal to the unification of “the people” is different. In ancient direct democracy, demagoguery had an immediate law-​making impact because the assembly was the unmediated sovereign, rather than an organ made up of people who were not physically present and were, therefore, defined and represented by the political competitors. Populism, however, develops within a state order, in which the popular sovereign is defined by an abstract principle, leaving rhetoricians free to fight over the interpretations of that principle and to compete for its representation in the state. I  have elsewhere argued that it is simplistic and inadequate to think in terms of a simple dichotomy between direct and representative democracy—​as if participation sided with the former and elected

A theory of populist democracy  135 aristocracies sided with the latter.23 Democratic politics is always representative politics, insofar as it is articulated and occurs in the form of interpretations, partisan affiliations, engagements, and finally decisions by the majority of individual votes. These processes do not merely produce a majority: they produce the majority and the opposition, in a ceaseless, conflicting dialectic. Citizens’ expression of proposals, their contestation of ideas, and their consent to proposals and ideas (and the candidates who speak for them) are all components of democracy’s diarchy of will and opinion.

An inadequate hyphenation Taking a diarchic perspective, we can argue against conventional wisdom, according to which populism is best understood as “illiberal democracy.”24 A  democracy that infringes basic political rights—​especially the rights crucial for forming opinions and judgments, expressing dissents, and changing views—​and that systematically precludes the possibility of the formation of new majorities is not democracy at all. A minimal (as electoral) definition of democracy thus implies more than merely elections, if it is, in fact, to describe democracy.25 As Bobbio writes, electors must be offered real alternatives and be in a position to choose between these alternatives. For this condition to be realized, those called upon to make decisions must be guaranteed the so-​called basic rights:  freedom of opinion, of expression, of speech, of assembly, and association etc.26 The diarchy of will and opinion means that democracy is effectively inconceivable without a commitment to political and civil liberties, which requires a constitutional pact to proclaim and promise to protect them, and a division of power and the rule of law to protect and guarantee them. Of course, none of these liberties is unlimited. But it is essential that the interpretation of their scope does not lie in the hands of the majority in power—​not even a majority in power whose policies seem to meet the social interests of the many.27 This is the condition for representative democracy to work, and for its process to remain open and indeterminate. As such, thinking and talking in terms of a distinction between “democratic” and “liberal democratic” is misguided, as is thinking and talking in terms of “liberal democracy” and “illiberal democracy.”28 These terms, while popular and abundantly employed against populism, are shortsighted and imprecise because they presume something that, in fact, cannot exist: democracy without rights to free speech and freedom of association, and democracy with a majority that is overwhelming enough to block its own potential evolutions and mutations (that is, other majorities).29 From the diarchic perspective, liberal democracy is a pleonasm and illiberal democracy is a contradiction in terms, an oxymoron.30 Moreover, the concept of “liberally hyphened democracy” plays into the hands of those who claim that populism is democracy at its highest. It

136  Nadia Urbinati allows proponents of populism to claim that the liberal part of the hyphen limits democracy’s endogenous strength—​ namely, sponsoring the power of the majority. This suits the populist claim rather well. In a speech given during the electoral campaign of 1946, Juan Domingo Perón (the father of Argentinian populism) styled himself a true democrat, in contrast to his adversaries, whom he accused of being liberal democrats: “I am, then, much more democratic than my adversaries, because I seek a real democracy whilst they defend an appearance of democracy, the external form of democracy.”31 The problem, of course, is that the “external form of democracy” is essential to democracy. It is not merely “an appearance,” and it is not the prerogative of liberalism alone. If one adopts a non-​diarchic conception of democracy and stresses the moment of decision (of the people or their representatives) as the essence of democracy, the mobilization and dissent of citizens appears to signal a crisis in democracy instead of appearing as a component of democracy. Narrowing the democratic moment to voting or elections alone turns the extra-​institutional domain into the natural site of populism, and in doing so, as William R. Riker wrote years ago, liberalism and populism become the only games in town.32 The diarchic theory of democracy allows us to avoid this pitfall. Most important, it allows us to argue that populism shows itself to be impatient not with the “liberal” side of the hyphen “liberal-​democracy” but with the democratic diarchy or democratic constitution instead. Populism shows itself to be intolerant of civil liberties, insofar as (1)  it defers exclusively to the winning majority to solve disagreements within society; (2) it tends to shatter the mediation of institutions by making them directly subject to the will of the ruling majority and its leader; and (3)  it constructs a representation of the people that, while inclusive of the large majority, is ex ante exclusionary of another part. Inclusion and exclusion are not a populist prerogative; they are internal to the democratic dialectic among citizens who disagree on many things, and the democratic dialectic is a game of government and contestation. Democracy means that no majority is the last one, and that no dissenting view is confined ex ante to a position of peripheral impotence or subordination merely because it is held by the “wrong” people. But for this open dialectic to persist, the elected majority cannot behave as if it were the direct representative of some “true” people. (Indeed, at the government level, no decision “can be made without some degree of cooperation with political adversaries”; thus, adversaries are always a part of the game.)33 Democracy without individual liberty—​ political and legal—​ cannot exist, and it is in this sense that the term “liberal democracy” is a pleonasm.34 It suggests that “democracy is before liberalism”—​that as a government and a politics based on freedom, it is self-​standing or non-​dependent on liberalism, although it has historically profited from some liberal achievements. This is not only the case because democracy predated liberalism; more importantly, it is the case because democracy is a practice of liberty in action and in public, which is imbued with individual liberty. As Josiah Ober puts it, the “political practice of democracy requires conditions that map onto core liberal and

A theory of populist democracy  137 republican values of freedom and equality.”35 This makes it an open game in which a change of government is always possible and is inscribed within majority rule. In the words of Giovanni Sartori: “The democratic future of a democracy hinges on the convertibility of majorities into minorities and, conversely, of minorities into majorities.”36 Thus, liberal democracy is really just democracy.37 Beyond this, we get fascism, which is neither “democracy without liberalism,” nor democracy, nor political liberalism. Its early theorists and leaders, of course, knew this well.38

The populist ambition Populists attempt to construct a form of representation that gets rid of party government, abolishes the machinery that generates the political establishment and imposes compromises and transactions, and that fragments the people. If the principle that rules representative democracy is liberty—​and therefore the possibility of dissent, pluralism, and compromise—​then the principle ruling populism is the unity of the collective, which sustains the leader in his or her decisions. Seeing this, we can understand how populism in power is a form of representative government that is based on a direct relationship between the leader and those who are deemed to be the “right” or the “good” people: those whom the leader claims to unify and bring to power and whom the elections reveal but do not create. We can also understand why populism in power may tend toward authoritarian temptations, although it is not in and of itself an authoritarian regime. A further implication of populism’s impatience with party democracy (and partisan division of the people) is its transmutation of the procedural conception of “the people” into a proprietor. This point is crucial, and it has been generally neglected in the massive literature on populism. We must overcome this neglect. Whenever populists come to power, they treat procedures and political cultures as a matter of property and possession. “Our” rights (as we hear from the proclamations of the Hungarian Prime Minister Viktor Orbán, from the proclamations of the former Italian Minister of the Interior Matteo Salvini, and from U.S. President Trump) are the polestar of populism. They epitomize the populist wrenching of the ideas, the practice, and the legal culture that are associated with civil rights—​namely, equal consideration and inclusion. The characterization of populism as a possessive conception of political institutions is at the basis of its factional nature. This adds to its impatience with constitutional courts autonomous from political majority and the division of powers and casts light on its paradoxical character: populism in power is doomed either to be unbalanced (as in a permanent campaign) or to become a new regime. It cannot afford to be a democratic government among others because the majority it represents is not a majority among others: it is the “good” one, which exists independently of elections. In conclusion, the diarchic theory of representative democracy makes two claims that are illuminating for understanding populism in power. First, it

138  Nadia Urbinati asserts that “will” and “opinion” are the two powers of the sovereign citizens. Second, it asserts that they are different in principle, and should remain distinct in practice, even though they must be (and are) in constant communication with each other. Diarchy is my name for a mediated or indirect kind of self-​government, which presumes a distance and a difference between the sovereign and the government and which avoids the pleonasm implied in the formula “liberal-​democracy.” Elections regulate that difference, while representation (which is both an institution inside the state and a process of participation outside it) regulates that distance. It is precisely this difference and this distance that populist forms of representation question and transform and that populism in power tries to overcome through direct representation. Direct representation is an oxymoron I use to capture the idea that populist leaders want to speak directly to the people and for the people without needing intermediaries (especially parties). As said, even though populism does not renounce elections, it uses them as a celebration of the majority and its leader rather than as a competition among leaders and parties that facilitates assessment of the plurality of preferences. Populism cannot avoid forming a party, but this party has the character of a movement with blurring borders and inclusive of the many claims possible. It is, in effect, a leader-​based movement more than a party because its light organization and blurring edges makes the leader into a Caesaristic dux who decides and acts as he pleases and possibly without obstacles. More specifically, populist democracy weakens the organized parties on which electoral competitions have until now relied and political mandate has been constructed. Finally, it creates its own lightweight and malleable party, which purports to unify claims beyond partisan divisions. The leader uses this “movement” as he or she pleases, and bypasses it if need be. In a conventional representative democracy, political parties and the media are the essential intermediary bodies as they allow the inside and the outside of the state to communicate without merging and grant participation through a permanent dialectic between trust and mistrust. A populist representative democracy, by contrast, seeks to overcome those “obstacles” and substitute trust with faith. It “democratizes” the public (or so it claims) by establishing a perfect and direct communication between the two sides of the diarchy and—​ideally—​merging them; in so doing, it makes the people fully dependent on the discourse and will of the leader who has, in effect, carte blanche. The goal of the oppositional rhetoric of the “ordinary people” against the “established few” is to convince the people that it is possible for them to be ruled in a representative manner without the need for a separate political class or “the establishment.” Dux cum populo is the scheme of populism and the unifying function of its representative leader. The image of “incarnation” can assist us in capturing the character of this type of representation.39 This same image also brings us closer to the

A theory of populist democracy  139 central puzzle of the populist leader becoming a new establishment without appearing to be. Perón wanted to be “all things to all men” and even sought to appear godlike, or pope-​like, if needed. “I always follow the rule of greeting everybody because, and you must not forget it, I am now something like the Pope.”40 Chávez employed salvific and apocalyptic symbols to prove that the people, not himself, was the protagonist and the true agent of transformation. He asked for lealtad absoluta (absolute loyalty), declaring, “I am not myself … I am not an individual, I am the people,” and claiming, “Only the people can save the people, and I will be your instrument.”41 In one of the speeches Trump delivered on the evening of his presidential victory, he said that it was not he who won and, in fact, claimed that it was not even he who was talking: the people had won the White House and the people were talking through him that night. This is the symbolism of representation as incarnation or embodiment of the sovereign people, and it is the most radical alternative to party-​based representation (no party would ever declare to incarnate the true people). The embodiment of the people in the leader’s person exonerates him or her of the risk of being seen as an establishmentarian or as an “insider.” Yet it makes people impotent before the leader as its unity exists only in him or her. The risk of a populist democracy is that of crowning a leader through the people’s fait rather than resurrecting the power of the people.

Conclusion Can we trust populism in power? My answer is that we cannot. We cannot because populism is not simply a style that can be adapted to different projects or be indifferently progressive and regressive. The machinery that a populist leader en marche toward state power is primed to put in motion is far from neutral. Pro-​populist leftist assumptions about populism are, thus, unwarranted because populism is not merely a tool that can be harnessed to reformist or conservative plans. It is not simply “a style of politics”; in order to be successful, populism has to transform the basic principles and rules of democracy itself. In so doing, it leads politics and the state toward outcomes that citizens cannot control. Populism inevitably proceeds to exalt and ensure the prominent role and power of the leader. This occurs for the simple reason that the success of the narrative rests on the success of the leader—​and both of these things are contingent on the leader’s authority over the people and its parts. Regardless of its radical and reformist program, its actualization within the state depends essentially on the authority of the leader, the leader’s small group of supporters, and the faith people have in him or her. The populist people abdicates its power to the leader because without him or her, it does not exist as a collective subject, ruling the state. This abdication cannot be avoided if a populist politics is to be successful. As such, populism is girded by a paradox it cannot resolve.

140  Nadia Urbinati

Notes 1 In the first issue of the journal Constellations in 1998, I edited a special section on populism, in which I collected some of the papers delivered at the “International Conference on Democracy:  Between Populism and Oligarchy” organized by Princeton University in November 1996. 2 For an overview of the impacts of these factors in the growth of populism in Western democracies after the Cold War, see Yves Mény and Yves Surel, eds., Democracies and the Populist Challenge (New York: Palgrave, 2002). 3 Nancy Rosenblum, On the Side of the Angels:  An Appreciation of Parties and Partisanship (Princeton, NJ: Princeton University Press, 2008). 4 Frances McCall Rosenbluth and Ian Shapiro, Responsible Parties:  Saving Democracy from Itself (New Haven, CT: Yale University Press, 2018), 20. 5 This chapter is derived from the introduction of my book Me the People:  How Populism Transforms Democracy (Cambridge, MA:  Harvard University Press, 2019),  1–​39. 6 Jan-​Werner Müller, Contesting Democracy:  Political Ideas in Twentieth-​Century Europe (New Haven, CT: Yale University Press, 2011), 5. 7 The path I follow resonates with a view broadly shared in contemporary scholarship, according to which populism made its appearances in connection with the crisis of political representation or of an existing form of representative government; Kenneth M.  Roberts, “Populism, Political Mobilizations, and Crisis of Political Representation,” in The Promise and Perils of Populism:  Global Perspectives, ed. Carlos de la Torre (Lexington:  University Press of Kentucky, 2015), 140–​158. 8 This should impel us to avoid fideism and to hold a critical perspective about the contingent nature of constitutional democracy; John Dunn, Breaking Democracy’s Spell (New Haven, CT: Yale University Press, 2014), 34. 9 Andrew Arato, “How We Got Here: Transition Failures, Their Causes, and the Populist Interests in the Constitution,” Public Seminar, October 11, 2017, accessed February 7, 2020, https://​papers.ssrn.com/​sol3/​papers.cfm?abstract_​id=3116219. 10 Norberto Bobbio, The Future of Democracy, trans. from Italian by Roger Griffin, ed. Richard Bellamy (Cambridge: Polity Press, 1987), 30. 11 Chantal Mouffe, “The Populist Challenge,” DemocraciaAbierta, December 5, 2016, accessed February 7, 2020, www.opendemocracy.net/​democraciaabierta/​ chantal-​mouffe/​populist-​challenge. 12 Oxford English Dictionary, accessed February 7, 2020, www.oed.com/​start;jsessio nid=7E928FCEA55A2A63A9214994AA48002D? 13 Ernesto Laclau, “Populism,” What’s in a Name,” in Populism and the Mirror of Democracy, ed. Francisco Panizza (London: Verso, 2005), 40. 14 Christopher Meckstroth, The Struggle for Democracy: Paradoxes of Progress and the Politics of Change (Oxford: Oxford University Press, 2015), 179. 15 Margaret Canovan, The People (Cambridge: Polity Press, 2005), 87. 16 The analysis of electoral competition as ruled by catch-​all parties, with the primary goal of expanding their electorate more than their members or affiliates, was provided many years ago by Otto Kircheimer, “The Transformation of the Western European Party Systems,” in Political Parties and Political Development, ed. Joseph La Palombara (Princeton, NJ:  Princeton University Press, 1966), 177–​200.

A theory of populist democracy  141 17 A rich and useful analysis of the “imperfect forms of either totalitarianism or democratic politics”—​namely, “authoritarian regime” and whether it can prepare for transition to democracy—​can be found in Juan J.  Linz, “An Authoritarian Regime: Spain,” in Mass Politics: Studies in Political Sociology, eds. Erik Allardt and Stein Rokkan, with a foreword by Seymour M. Lipset (New York: Free Press, 1970), 252–​254. That populism leads to “Competitive authoritarianism” is the central thesis of Steven Levitsky and James Loxton, “Populism and Competitive Authoritarianism:  The Case of Fujimori’s Peru,” in Populism in Europe and the Americas:  Threat or Corrective for Democracy?, eds. Cas Mudde and Cristóbal Rovira Kaltwasser (Cambridge: Cambridge University Press, 2013), 160–​181. 18 Meanwhile Chávez “attacked the Internet as ‘a battle trench’ that was bringing ‘a current of conspiracy’ ”; see Evgeny Morozov, The Dark Side of Internet Freedom: The New Delusion (New York: PublicAffairs, 2011), 113. 19 Michael Saward, The Representative Claim (Cambridge:  Cambridge University Press, 2010). 20 After winning the elections in 1949, General Juan Domingo Perón said, “We have given the people the opportunity to choose … The people have elected us, so the problem is resolved”; quoted in Ernesto Laclau, Politics and Ideology in Marxist Theory: Capitalism, Fascism, Populism (London: Verso, 2011), 189. 21 While “mixed government” was originally an ancient category, Bernard Manin adapted it to governments based on elections in The Principles of Representative Government (Cambridge: Cambridge University Press, 1997). 22 Nadia Urbinati, Democracy Disfigured: Opinion, Truth and The People (Cambridge, MA: Harvard University Press, 2014). 23 Nadia Urbinati, Representative Democracy:  Principles and Genealogy (Chicago: University of Chicago Press, 2006), esp. 17–​59. 24 For a discussion of populism’s relation to democracy and liberal democracy, see Cas Mudde and Cristóbal Rovira Kaltwasser, “Populism and (Liberal) Democracy:  A Framework for Analysis,” in Populism, eds. Cas Mudde and Cristóbal Rovira Kaltwasser (New York: Oxford University Press, 2017), 10. 25 Minimalist theorists of electoral democracy confirm this more-​ than-​ minimal assumption when they presume that elections work on the condition that competitors comply with the rules of the game and have developed an ethics of trust. Their theory is, in fact, not so minimal after all; see Adam Przeworski, “Minimalist Conception of Democracy: A Defense,” in Democracy’s Value, eds. I. Shapiro and C. Hacker-​ Cordon (Cambridge: Cambridge University Press, 1999), 23–​55. 26 Bobbio, Future of Democracy, 25. 27 Josiah Ober, Demopolis:  Democracy before Liberalism in Theory and Practice (Cambridge:  Cambridge University Press, 2017), preface; Elizabeth Anderson, “How Should Egalitarians Cope with Market Risks?” Theoretical Inquiries in Law 9 (2007): 61–​92. She argues that democrats should retain some risks in their projects of bringing more social equality. 28 Illiberal democracy has been defined as a regime that mixes elections and authoritarianism; see Fareed Zakaria, The Future of Freedom:  Illiberal Democracy at Home and Abroad (New York: W. W. Norton, 2007). 29 Bernard Crick, In Defense of Politics, 4th ed. (Chicago:  University of Chicago Press, 1993), 184. 30 See Claus Offe, Europe Entrapped (Cambridge: Polity Press, 2016), 144. I would simply repeat what Immanuel Kant wrote about “perpetual peace”: since peace

142  Nadia Urbinati means an “end to all hostilities,” a mere suspension of hostility is not peace but a truce—​hence, “to attach the adjective ‘perpetual’ to it is already suspiciously close to pleonasm”; Kant, Perpetual Peace: A Philosophical Sketch (1795), in Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1999), 93. 31 Quoted in Laclau, Politics and Ideology, 189. 32 Democracy either is “minimal” (namely, voting as vetoing) or is populism: William E.  Riker, Liberalism against Populism:  A Confrontation Between the Theory of Democracy and the Theory of Social Choice (San Francisco:  W. H.  Freeman, 1982), esp. 241–​253. 33 Jonathan White and Lea Ypi, The Meaning of Partisanship (Oxford:  Oxford University Press, 2016), 148. 34 Thus, Jürgen Habermas famously spoke of the “co-​originality” of political liberty and individual liberty. See his “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory 29, no. 6 (2001): 767. 35 Ober, Demopolis, 7. 36 Giovanni Sartori, The Theory of Democracy Revisited (Chatham, NJ:  Chatham House, 1987), 24. 37 Jürgen Habermas, Between Facts and Norms: Contribution to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), 287–​328. 38 The ambition of fascism was to replace liberalism, socialism, and democracy because it was opposed to what unified them: “individualistic abstractions based on eighteenth century materialism.” Benito Mussolini and Giovanni Gentile, “The Doctrine of Fascism” [1932], in Mussolini, Fascism Doctrine and Institutions [1935], accessed February 7, 2020, www.worldfuturefund.org/​wffmaster/​Reading/​ Germany/​mussolini.htm. 39 On the conceptions of representation (and on embodiment or incarnation), see Yves Sintomer, “The Meanings of Political Representation: Uses and Misuses of a Notion,” Raisons Politiques 50, no. 2 (2013): 13–​34. 40 Quoted in Ernesto Laclau, On Populist Reason (London: Verso, 2005), 216. 41 Speech delivered on January 23, 2010; “Chávez exige ‘lealtad absoluta’ a su liderazgo,” El Nuevo Diario, January 23, 2010, accessed February 7, 2020, http://​ elnuevodiario.com.ni/​internacionales/​66703-​chavez-​exige-​lealtad-​absoluta-​su-​ liderazgo/​; see also Margarita Lopez Maya and Alexandra Panzarelli, “Populism, Rentierism, and Socialism in the Twenty-​First Century: The Case of Venezuela,” in Latin American Populism in the Twenty-​First Century, eds. Carlos de la Torre and Cynthia J. Arnson (Baltimore, MD: Johns Hopkins University Press, 2013), 250.

Bibliography Anderson, Elizabeth. “How Should Egalitarians Cope with Market Risks?” Theoretical Inquiries in Law 9 (2007): 61–​92. Arato, Andrew. “How We Got Here:  Transition Failures, Their Causes, and the Populist Interests in the Constitution,” Public Lecture, October 1, 2017. Accessed February 7, 2019. https://​papers.ssrn.com/​sol3/​papers.cfm?abstract_​id=3116219. Bobbio, Norberto. The Future of Democracy, translated from Italian by Roger Griffin and edited by Richard Bellamy. Cambridge: Polity Press, 1987. Canovan, Margaret. The People. Cambridge: Polity Press, 2005.

A theory of populist democracy  143 Chávez, Hugo. Speech, “Chávez exige ‘lealtad absoluta’ a su liderazgo.” El Nuevo Diario, January 23, 2010. Accessed February 7, 2020, http://​elnuevodiario.com.ni/​ internacionales/​66703-​chavez-​exige-​lealtad-​absoluta-​su-​liderazgo/​. Crick, Bernard. In Defense of Politics, 4th ed. Chicago: University of Chicago Press, 1993. Dunn, John. Breaking Democracy’s Spell. New Haven, CT: Yale University Press, 2014. Habermas, Jürgen. Between Facts and Norms: Contribution to a Discourse Theory of Law and Democracy, translated by William Rehg. Cambridge, MA:  MIT Press, 1996. Habermas, Jürgen. “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory 29, no. 6 (2001), 766–​781. Kant, Immanuel. “Perpetual Peace:  A Philosophical Sketch (1795).” In Political Writings, edited by Hans Reiss, 93–​125. Cambridge: Cambridge University Press, 1999. Kircheimer, Otto. “The Transformation of the Western European Party Systems.” In Political Parties and Political Development, edited by Joseph La Palombara. Princeton, NJ: Princeton University Press, 1966. Laclau, Ernesto. On Populist Reason. London: Verso, 2005. Laclau, Ernesto. Politics and Ideology in Marxist Theory:  Capitalism, Fascism, Populism. London: Verso, 2011. Laclau, Ernesto. “Populism,” What’s in a Name?” In Populism and the Mirror of Democracy, edited by Francisco Panizza, 32–​49. London: Verso, 2005. Levitsky, Steven, and James Loxton. “Populism and Competitive Authoritarianism: The Case of Fujimori’s Peru.” In Populism in Europe and the Americas:  Threat or Corrective for Democracy?, edited by Cas Mudde and Cristóbal Rovira Kaltwasser, 160–​181. Cambridge: Cambridge University Press, 2013. Linz, Juan J. “An Authoritarian Regime: Spain.” In Mass Politics: Studies in Political Sociology, edited by Erik Allardt and Stein Rokkan, 251–​283. New  York:  Free Press, 1970. Manin, Bernard. The Principles of Representative Government. Cambridge: Cambridge University Press, 1997. Maya, Margarita Lopez, and Alexandra Panzarella. “Populism, Rentierism, and Socialism in the Twenty-​First Century: The Case of Venezuela.” In Latin American Populism in the Twenty-​First Century, edited by Carlos de la Torre and Cynthia J. Arnson, 239–​269. Baltimore, MD: Johns Hopkins University Press, 2013. Meckstroth, Christopher. The Struggle for Democracy: Paradoxes of Progress and the Politics of Change. Oxford: Oxford University Press, 2015. Mény Yves and Yves Surel, eds. Democracies and the Populist Challenge. New York: Palgrave, 2002. Morozov, Evgeny. The Dark Side of Internet Freedom: The New Delusion. New York: PublicAffairs, 2011. Mouffe, Chantal. “The Populist Challenge.” DemocraciaAbierta, December 5, 2016. Accessed February 7, 2020. www.opendemocracy.net. /​democraciaabierta/​chantal-​ mouffe/​populist-​challenge. Mudde, Cas, and Cristóbal Rovira Kaltwasser, “Populism and (Liberal) Democracy: A Framework for Analysis.” In Populism, edited by Cas Mudde and Cristóbal Rovira Kaltwasser. New York: Oxford University Press, 2017.

144  Nadia Urbinati Mussolini, Benito, and Giovanni Gentile. “The Doctrine of Fascism” [1932]. In Mussolini, Fascism Doctrine and Institutions [1935]. Accessed February 7, 2020. www.worldfuturefund.org/​wffmaster/​Reading/​Germany/​mussolini.htm. Müller, Jan-​Werner. Contesting Democracy:  Political Ideas in Twentieth-​ Century Europe. New Haven, CT: Yale University Press, 2011. Ober, Josiah. Demopolis:  Democracy before Liberalism in Theory and Practice. Cambridge: Cambridge University Press, 2017. Offe, Klaus. Europe Entrapped. Cambridge: Polity Press, 2016. Oxford English Dictionary. Accessed February 7, 2020. www.oed.com/​start;jsessionid =7E928FCEA55A2A63A9214994AA48002D? Przeworski, Adam. “Minimalist Conception of Democracy:  A Defense.” In Democracy’s Value, edited by I. Shapiro and C. Hacker-​Cordon, 23–​55. Cambridge: Cambridge University Press, 1999. Riker, William E. Liberalism against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice. San Francisco: W. H. Freeman and Co, 1982. Roberts, Kenneth M. “Populism, Political Mobilizations, and Crisis of Political Representation.” In The Promise and Perils of Populism: Global Perspectives, edited by Carlos de la Torre 140–​158. Lexington: University Press of Kentucky, 2015. Rosenblum, Nancy. On the Side of the Angels:  An Appreciation of Parties and Partisanship. Princeton, NJ: Princeton University Press, 2008. Rosenbluth, Frances McCall, and Ian Shapiro. Responsible Parties: Saving Democracy from Itself. New Haven, CT: Yale University Press, 2018. Sartori, Giovanni. The Theory of Democracy Revisited. Chatham, NJ:  Chatham House, 1987. Saward, Michael. The Representative Claim. Cambridge: Cambridge University Press, 2010. Sintomer, Yves. “The Meanings of Political Representation: Uses and Misuses of a Notion.” Raisons Politiques 50, no. 2 (2013): 13–​34. Urbinati, Nadia. Democracy Disfigured: Opinion, Truth and The People. Cambridge, MA: Harvard University Press, 2014. Urbinati, Nadia. Me the People: How Populism Transforms Democracy. Cambridge, MA: Harvard University Press, 2019. Urbinati, Nadia. Representative Democracy:  Principles and Genealogy. Chicago: University of Chicago Press, 2006. White, Jonathan, and Lea Ypi. The Meaning of Partisanship. Oxford:  Oxford University Press, 2016. Zakaria, Fareed. The Future of Freedom:  Illiberal Democracy at Home and Abroad. New York: W. W. Norton, 2007.

7  The populist right Anti-​liberal politics and conservative temptations Valur Ingimundarson

In his theses on the philosophy of history, Walter Benjamin argues that to articulate the past does not require understanding it, in Rankian terms, as “it really was.” What it means is to seize hold of a memory, flashing up at the moment of danger. Every image of the past, which is not recognized by the present as one of its own concerns, threatens to disappear irretrievably. Facing the threat of fascism, Benjamin was convinced that the state of emergency in which he lived was not the exception but the rule and that the assertion of—​and faith in—​progress was about deflecting the gaze from history or what he characterized as a sky-​high pile of debris. For memory always developed belatedly into understanding; its deposits were, then, shocked into knowledge or new recognizability.1 In the debate over the contemporary populist Radical Right, one can discern such a tension between the past and the present—​between those who see populism as a warning sign of encroaching fascism and those who claim that it has nothing to do with the political ghosts of history. Thus, the populist phenomenon2 has been variously characterized as having been born out of historical fascism,3 as a reaction to contemporary economic, cultural, and social insecurities generated by neoliberal agendas,4 and even as a systemic corrective of a politics that has become too distant from the people.5 Given these conflicting interpretations, it is not surprising that populism has also been seen as holding a friendly relationship with democracy.6 Exclusivist technocratic notions of what constitutes the demos have been juxtaposed against those that highlight the redemptive potential of democracy whereby “the people” should decide their own future through a direct expression of their sovereign will.7 Within the framework of the theoretical literature on populism, the purpose here is to historicize the European Radical Right in terms of ideology, party formation, and political practice with a special focus on its relationship with the Conservative Right. Rooted in traditions that stem back to the interwar and World War II periods as well as to the Cold War, the populist Right belongs to various political milieus8—​ranging from historical fascism, neofascism to neoliberal revolts.9 Yet its resurgence after the 2008 financial crisis does not signify a throwback to another era. The declared acceptance of

146  Valur Ingimundarson parliamentary democracy and its refrain from violence as a political strategy makes contemporary populism different from the interwar Radical Right. Populism should not, however, be classified as an ahistorical late-​comer on the political scene. As I will argue here, populist parties share important functional links with fascist movements through their behavior within parliamentary democracy, such as their pursuit of anti-​elitist, xenophobic agendas, and, paradoxically, their willingness to forge alliances with conservative elites.10 The party platforms of the Radical Right in Europe, except for those parties that are overtly associated with fascist roots or ideology, possess common characteristics that not only underscore their transnational reach but also their identification with a generic party family. This is particularly reflected in their ideological emphasis on ethnic exclusion, “welfare chauvinism,” and cultural conservativism. That does not mean that no distinction should be made between populist parties and other nationalist parties on the Right. There is a need to move away from the scholarly tendency to label most right-​ wing authoritarian leaders as populists. To be sure, they may agree on core issues, such as fighting immigration, multiculturalism, and supranationalism, but the strongmen of Poland and Hungary—​to take an example—​have more to do with nationalist conservatism than populism, even if they are under the latter’s influence. At the same time, Northern and Western European conservative parties have, with few important exceptions—​notably, Germany, France, and Sweden—​facilitated the Radical Right’s acceptance into the political mainstream as part of a strategy to stay in power. This collaboration does not follow a single pattern. Some conservative parties, especially those in the Nordic countries, are not willing to go as far as others in neutralizing the populist Right through what may be termed programmatic parroting, as in the case of Austria, on issues such as immigration and political Islam or through semi-​authoritarian rule, as is the case in Hungary and Poland. But my point is that the ambiguous relationship between the Radical and Conservative Right reflects a central paradox: the success of the populist Right in many European countries has allowed it to act both as a systemic destabilizer and stabilizer. On the one hand, it is a disrupting anti-​elitist force, seeking to reverse mainstream policies on immigration, welfare, multiculturalism, and European integration. On the other, it is an accommodating political vehicle that is prepared to forge alliances with conservative elites based on nationalist and traditionalist agendas.

A “crisis of representation”: the tension between populism and democracy While theorists on populism have defined the concept in different ways, they usually agree on one common characteristic:  the antagonistic relationship between the “people” and elites. Cas Mudde and Cristóbal Rovira Kaltwasser maintain that, like other ideologies, such as liberalism, nationalism, or socialism, populism can have positive or negative effects, as a potential

The populist right  147 corrective as well as a threat to democracy, depending on the political context. As a democratizing force, it defends the principle of popular sovereignty with the aim of empowering groups that do not feel represented by the political establishment. It can also, however, lead to authoritarian aberrations and conflicts with representative democracy because of its rejection of pluralism, including minority rights.11 Thus, to counter the argument that their definition of populism is too broad and elastic, Mudde and Kaltwasser stress that what constitutes its opposition is not only elitism but also pluralism, which contains a variety of partly overlapping social groups with different ideas and interests. Chantal Mouffe accepts such a dualistic interpretation of populism, but makes a sharp distinction between its left-​wing and right-​wing variants. Using Ernesto Laclau’s classic left-​wing populist framework,12 she repackages it as a radical political recipe in the present. Laclau defined populism as a discursive strategy aimed at constructing a political frontier, dividing society into two camps, and at enlisting the “underdog” against the establishment. Mouffe argues that the next central axis of political conflict in Europe will be between right-​wing and left-​wing populism.13 She believes that it is a mistake to characterize the populist Right as representing a fascist reaction. On the contrary, she claims that many of its demands are “democratic” to which a “progressive answer must be given.”14 She even credits Jörg Haider, the late leader of the populist Austrian Freedom Party, for mobilizing the themes of popular sovereignty to articulate growing resistance to the way Austria was governed by a coalition of elites made up of Conservatives and Social Democrats.15 Her point about political corruption stemming from the post-​ war governing-​sharing arrangement institutionalized by the Conservatives and Social Democrats has some validity. Yet, by ignoring Haider’s political program, she not only papers over his support for neoliberal policies but also his nostalgia about interwar fascism and links with neofascist groups.16 It is, however, not only Mouffe who has criticized the Social Democratic Left for diabolizing right-​wing populists and for not heeding the concerns and anxieties they express. A  growing chorus of center-​left politicians and intellectuals have urged Social Democrats to stop equating a critical discussion on immigration with xenophobia and to admit that right-​wing populist success reflects deep-​seated economic and social insecurities. What needs to be acknowledged, they argue, is that the gap between the winners and losers of globalization is growing—​a gap that neither the Center-​Left nor the Center-​Right have been able to bridge. This has enabled right-​wing populist adversaries to recruit from those who are threatened by social decline due to foreign competition and the ideological offensive waged by neoliberalism. A  Social Democratic counter-​strategy—​French Socialist politician Laurent Baumel asserts—​cannot be based on moral judgments of right-​wing populist voters, for it only exacerbates the divide between the “elitist do-​gooders” and the “allegedly racist masses.”17 Similarly, Ernest Hildebrand believes that the populist adversaries need to be taken seriously, because they are

148  Valur Ingimundarson not anti-​democratic, with many of them rooted in left-​wing milieus.18 The Social Democrats may want to heed the call for rediscovering their domestic labor roots. But such an overly accommodating approach toward their political adversaries on the Right may not only underestimate the authoritarian tendencies of populists but also dilute further the international ideological traditions of the Left. By “legitimizing” ethno-​nationalist populism on the grounds that it reflects democratic aspirations, they have also begun borrowing its policies in some areas. The Danish Social Democrats have, for example, revised their immigration policy in such a radical way that it echoes many of the core tenets of the right-​wing populist Danish People’s Party. Jan-​ Werner Müller dismisses the populist Right’s redemptive possibilities and views it as being fundamentally antithetical to democracy. Right-​ wing populists, he argues, seek to identify with the “people” in an attempt to represent it in an exclusive way. Equating liberal democracy with democracy, he stresses that populism can never improve a political system that has become too elite-​driven. Thus, the populist distinction between the “pure people” and the “corrupt elite” involves a particular moralistic imagination of politics. The “people” do not exist in the real world, for they are an imaginary construct created for anti-​democratic purposes. While Müller concedes that the practice of liberal democracy leaves much to be desired in some countries, it should be defended against populism’s false promises of democratic renewal.19 Hence, he sees no reason to engage with counterarguments—​put forward by scholars such as Yannis Stavrakakis and Anton Jäger—​that in an age of social inequalities and technocracy, elites are mostly responsible for divorcing liberalism from democracy and, by default, creating the conditions for the current rise of the populist Right.20 Müller does not really allow for what Margaret Canovan termed the two faces of democracy—​one redemptive and the other pragmatic—​which may be opposed, but are interdependent.21 Democratic redemption involves public participation and a loss of authority of representative organizations, such as political parties. But it does not represent a revolutionary challenge because it is not about the creation of popular sovereignty but operates within the system. Yet, like Müller, Nadia Urbinati has warned against the destructive tendency of populism—​ whether on the Right or Left—​ to make a democracy more intensely majoritarian. To her, populism disfigures democratic institutions in ruinous ways, because it makes the dialectics between minority and majority opinions hard to manage.22 She argues that a strategy embracing hegemonic politics, such as that proposed by Laclau, would be dangerously prone to becoming a vehicle for a reactionary Caesarism that uses populism to make itself victorious.23 If successful, it could lead to an exit from representative and constitutional democracy. Instead, she emphasizes the key role of “intermediary bodies” in democracies, which are capable of communicating political demands from a party base to an elite without the direct embodiment put forward by populist demagogues or the unrestrained demophobia of elitist technocrats.24

The populist right  149 What these different theoretical approaches have in common is to ascribe to populism the goal of reducing the distance between “the people” and their representatives. While some view its redemptive potential in breaking a post-​ political deadlock, others see it as a danger to democratic politics. All the accounts stress that the populists want to bypass representational institutional mechanisms, including parliamentary procedures, for example, through plebiscites, and to weaken the division of powers. Yet the problem with defining populism exclusively in such “ideational” terms—​as a discourse, an ideology, or a worldview—​is that it deflects attention from political practices. The focus on populism’s anti-​elitism not only obscures the collaboration with conservative elites but also its functional roles within democratic systems. No matter how the Radical Right is characterized, it has profited, in Europe, from the erosion of political loyalties or the dislocation between personal identities and party affiliation. With the decline of Social Democracy and some “big tent” center-​right parties, far-​right parties have, in many countries, become the second-​or third-​largest political force. While the weakening of the moderate Left has opened up spaces for Green parties and, to a lesser extent, radical left-​wing parties, the cumulative effect of this political realignment has been the strengthening of the Right. Several explanations have been offered to explain the Left’s retrenchment, such as the embracement of a globalist neoliberal agenda in the decade before the 2008 financial crisis—​ as symbolized by the “Third Way”—​and increasing detachment from the labor movement. It has enabled the populist Radical Right to make inroads into traditional left-​wing voting territories and to woo traditional working-​ class voters, especially after shifting its emphasis, in many instances, from neoliberal policies toward the social state and by portraying foreign workers as competitors in labor markets. This shows that its vocabulary is subject to change. Indeed, some right-​wing populist formations, such as Haider’s Freedom Party, started as protest parties, fighting against statism on the basis of a neoliberal agenda. Then they adopted nationalistic anti-​immigration politics, coupled with a law-​and-​order rhetoric, expressing support for socio-​ cultural traditional values. Mouffe argues that a “populist moment” has arrived, signaling the crisis of the neoliberal hegemony established in the 1980s. To counter the surge of the Right, she proposes, in line with Laclau’s theory, a Left populist strategy designed to establish a more democratic hegemonic formation. The experience of Thatcherism in Britain, she argues, shows that in European societies, it is possible to bring about a transformation of the existing order without destroying liberal democratic institutions.25 Given the current weaknesses of the Left, it is hard to see how a populist strategy will provide it with the weapons needed to resist the Radical Right. But there is no doubt that right-​ wing populist electoral gains in Europe have to be seen within the context of broader societal trends, such as increased social inequalities stemming from neoliberal globalization agendas, the 2008 financial crisis, and “identitarian” reaction against multi-​culturalism triggered by increased immigration.

150  Valur Ingimundarson

Historicizing the Right: ideological ambiguities and political practices While Western Europe has the strongest fascist legacy since World War II, the current national right-​wing parties, such as the Rassemblement National (RN) in France26 (formerly Front National (FN)), the Freedom Party in Austria (FPÖ), the Danish People’s Party (DP), or the Alternative for Germany Party (AfD), do not, on the surface, have much in common with the fascist parties of the 1930s. They do not openly question the basic tenets of democracy, even if they want, in some cases, to bypass parliamentary procedures by appealing directly to the “people” to implement their politics. They support a neoliberal capitalist system—​ even if they oppose unfettered globalization and core aspects of supranational projects, such as the European Union. While they blame the Left for propagating a multiculturalist, supranational, and minority rights agenda, they are not fighting a Marxist ideology or Communist parties. No European Radical Right party proposes national expansion by war, even if irredentist schemes are not totally absent. The advocates of border changes in post-​war Europe have mostly been secessionist rather than expansionist. And an anti-​Muslim agenda has mostly replaced anti-​Semitism as the main target (even if the latter was not shared by all fascist parties). Yet the European right-​wing populist parties have generally adopted a program that stresses a purist national past and cultural homogeneity, where historical myths play a role in forging exclusivist identity projections. They also build on the idea of ethno-​pluralism as a counter-​narrative to multi-​ culturalism. Instead of focusing on “blood and soil,” as the fascist parties did, the populists use mono-​cultural arguments to drive home the need for preserving unique national characteristics. Different ethnic groups have to be kept separate on the essentialist ground that any “mixture” would lead to cultural decay. To some scholars, this argument is not part of a traditional racist discourse because ethno-​pluralism does not have to be hierarchical or made up of “superior” or “inferior” ethnic groups.27 But such an interpretation is misplaced. Apart from the anti-​Islamic subtext, this ideological strand is clearly part of a racist tradition. “Separate but equal” was, for example, the standard refrain of those in the United States who sought to preserve a segregated South during the civil rights struggles of the 1950s and 1960s. In general, however, the parties on the far-​right have been careful not to identify themselves with fascism because of the stigma attached to it. They realize that any overt connotation would diminish their political influence and threaten their electoral appeal and prospects. In certain areas, their agenda has also marked a break. While being conservative and traditionalist on social issues, parties such as the Austrian Freedom Party28 and the Progress Party (FrP) in Norway29 have espoused individualist liberal economic policies in contrast to the social corporatist and sometimes anti-​capitalist rhetoric of the interwar Radical Right. Still, most of those parties most likely to be electorally successful in contemporary Europe are those that combine a nationalist

The populist right  151 ideology and conservative cultural values with social protection policies. Indeed, this has become the new Radical Right “winning formula” in contrast to the combination of neoliberalism and cultural traditionalism, which Anthony J. McGann and Herbert Kitschelt suggested in the 1990s.30 That the far-​right phenomenon is very broad in scope and rooted in different political milieus makes it difficult to put it under the same rubric.31 Ideological heterogeneity, however, is nothing new: the Radical Right parties in the 1930s and 1940s were equally fractious and diverse; irrespective of the time period, extreme nationalism does not lend itself easily to a classification into transnational groupings or solidarities. What hampered such cooperation among the interwar parties was whether they identified with Nazi Germany or Fascist Italy, whether they subscribed, in their nationalist rhetoric, to a racial retrograde agenda or to a modernist vision, or whether they espoused national expansion and irredentism (Germany, Italy, and Hungary) or a territorial status quo (Romania). Programmatic similarities can also be found between the past and present. Just like the fascists, the contemporary far-​right parties usually refuse to define themselves in terms of traditional right-​wing/​left-​wing classifications and seek to appeal to voters in both camps. Their hostility toward intergovernmental or supranational projects is a defining trait. And identity politics—​ the need to respond to a threat posed by national and cultural decline—​is a common theme. By attacking the corruption and weaknesses of elites, the parties seek to reinforce their status as saviors and outsiders. Their agenda is directed at marginalized groups in what Jens Rydgren terms a “master frame,” combining nativism with anti-​establishment rhetoric.32 There have, certainly, been exceptions, deviations, and flirtations with historical fascism all over Europe. The Golden Dawn in Greece, for example, is a neo-​Nazi party.33 Moreover, Jobbik—​The Movement for a Better Hungary—​ has been openly anti-​Semitic and anti-​Roma, and some party members have identified with fascism, even if its leaders disown any historical links to the Hungarian Nazi Arrow Cross Movement and have tried to moderate its program in an effort to change its ultra-​nationalist and xenophobic image.34 Within the German Alternative for Germany, there are elements that can be described as espousing a neofascist and anti-​Semitic agenda.35 The Sweden Democrats have a neo-​Nazi background and a tradition of interwar nostalgia.36 Finally, Matteo Salvini, the leader of the right-​wing populist party, Lega, had no qualms about paraphrasing one of Mussolini’s most well-​known phrases: “Many enemies, much honor.”37 The far-​right’s recent programmatic de-​emphasis on neoliberal economic truisms and its increased preoccupation with social welfare have highlighted a vulnerability on the Left. Indeed, in some countries, the Radical Right is not only competing with the Conservative Right for votes but with the Socialist Democratic Left and even the Radical Left (Podemos in Spain), hoping to win over its traditional social base.38 Austria provides a good example of such a trend: The Freedom Party is vying for the same urban

152  Valur Ingimundarson voters—​ often among the secular working and lower-​middle classes—​ as the Social Democrats, while the conservative Austrian People’s Party has retained its rural, religious electoral support.39 Thus, while the conservative parties have so far been the only ones who have openly welcomed cooperation with the far-​right under certain political conditions—​especially when they need the assistance of other parties to form majority governments—​ the question arises whether the Left will also be willing to do so. At the European national level, the Coalition of the Radical Left, the SYRIZA Party in Greece was the only left-​wing party that formed a coalition government with a tiny far-​right party, Independent Greeks, but only for tactical reasons, not ideological ones. In his restrictive interpretation of populist ideology, Jan-​Werner Müller sidesteps its historical dimensions40 and eschews explanatory factors, such as economic crises, crises of modernity, or social dislocations. He attaches the populist label to all right-​wing formations and makes no distinction between authoritarian or semi-​authoritarian leaders, such as Recep Tayyip Erdoğan, Vladimir Putin, Donald Trump, Narendra Modi, and Victor Orbán, even if he allows for different national trajectories. One way to counter such an oversimplification is to analyze populism in a similar way that the interwar Right has been studied, that is, by paying more attention to what unites and differentiates radicals from conservatives. In Hungary, Orbán and his party the Hungarian Civic Union, Fidesz, have moved sharply to the Right. Given his nationalist, natalist, and xenophobic agenda, it is possible that Orbán will eventually leave his traditional conservative base and side unreservedly with the populists. But so far he has pursued a hybrid strategy to enable him to stay in both camps. Sebastian Kurz, the head of the Austrian People’s Party, has also adopted core elements of the populist Freedom Party’s agenda by espousing anti-​immigrant, welfare chauvinistic, and anti-​Islamic policies. At the same time, he identifies with the Center-​Right conservative parties in the European Parliament. And in contrast to Orbán, he is firmly committed to the European project, having voiced criticism of the Hungarian government for undermining the independence of the judicial system. Thus, while the Conservative Right is perfectly capable of crossing ideological lines, it does not necessarily do so in unison. Müller’s argument that populist leaders are, generally, not interested in galvanizing and mobilizing the public is misleading because it fails to take into account key ideological distinctions. Some authoritarian leaders, who do not rely on party structures but on the state, may seek to stifle democratic participation. But populist leaders—​who have enthusiastically sought to work with right-​wing authoritarian leaders with strong party ties—​are bent on stimulating grass-​roots support. As Herbert Kitschelt suggested, such movement-​ parties seek to combine activities within the arenas of formal democratic competition with extra-​institutional mobilization.41 Similarly, it makes little sense to dismiss sociological analyzes of the populist electoral base, as Müller does, on the grounds that such parties tend to be catch-​all parties. Fascist and

The populist right  153 Radical Right parties attracted voters from all social strata in the 1930s, but not equally, as the many studies on the make-​up of their membership and electoral base show.42 The historian Robert Paxton argued some time ago that it can be productive to focus more on the political practices of fascists and less on their ideologies. This view contrasted with that of scholars associated with the so-​called “fascist consensus,” such as Roger Griffin, who define fascism in terms of a revolutionary ideology with a specific “positive,” utopian, or palingenetic vision of the ideal state of society.43 Both camps agree that fascism did not conveniently end in 1945. But, as Paxton has pointed out, while the texts and political agendas of fascists should be taken seriously, they often acted opportunistically by abandoning programmatic elements for tactical advantages.44 Hence, the typical warning signals of a fascist—​extreme nationalist propaganda and hate crimes—​are insufficient. More important are systemic situations of stalemate in the face of political and/​or economic crises and of threatened conservative elites, looking for allies and seeking mass support through nationalist demagoguery. When explaining fascism, such interpretations have become less fashionable than those pointing to broader “crises of modernity.” Yet one can view the rise of the contemporary populist parties through such a lens, for their influence becomes clear when conservative rivals actively begin to parrot their techniques and to appeal to their voter base.45 This is what is currently on display in some European countries. Thus, the nature of the link between the Conservative and Radical Right is all-​important, especially the question of whether the former can contain or neutralize the latter.

The collaboration between the Radical and Conservative Right The attempt by many populist parties to moderate their ethnically exclusivist message, has opened up possibilities for cooperation with other parties. Hence, accommodation has become the prevalent form of the relationship between European conservative and populist parties as practiced through government coalition agreements or ideological affinities. In some cases, however, the Center-​ Right has refrained, for ideological reasons, from entering into any type of collaboration with the Radical Right. And in yet other ones, conservatives can rule on their own or in cooperation with other centrist or, in some cases, Social Democratic parties. While their historical legacies and political styles are different—​ranging from the neoliberal, anti-​ statist populism of the Danish People’s Party and the Norwegian Progress Party, to the rural centrist roots of the Finns Party and the neo-​Nazi background of the Sweden Democrats—​the parties subscribe to an ideological program that combines cultural traditionalism with social welfare protection based on ethno-​nationalism. With the exception of the Sweden Democrats,46 the Scandinavian far-​right parties in Europe have been the most successful in gaining acceptance by the other parties and being integrated into the

154  Valur Ingimundarson political system. Moreover, they have acted as government partners of conservative parties in Denmark, Norway, and Finland. What this means is that liberal and centrist parties play a less important role as powerbrokers than in the past. So far, the Scandinavian Conservative Right has not responded in the same fashion as some conservative parties in Eastern Europe by adopting authoritarian tactics or by buying into the populists’ ultra-​ nationalist agenda. This is not to say that it has been immune to the ideological appeal of the Radical Right, as the mainstreaming of anti-​immigration rhetoric testifies to. But more important is the role of the populists as governing partners, even if they are also competitors.47 Similarly, in Austria, the Freedom Party has been part of the mainstream for some time. And in Italy, the Lega originally wanted to stick to its alliance with Silvio Berlusconi’s conservative party before forming what turned out be a dysfunctional and short-​lived government with the Five Star Movement. In some countries, historical or ideological factors prevent any cooperation between conservatives and populists. In Germany, the Christian Democrats were forced to renew their coalition government with the Social Democrats partly to prevent new elections, where the AfD could have improved on its new-​found position as the third-​largest party in the German parliament. Given the shadow of the Nazi past, it will be extremely difficult for the Christian Democratic Union (CDU) to warm to any cooperation with the far-​right; the more conservative sister party, the Christian Social Union (CSU) is also adamantly against it, even if its anti-​immigration rhetoric has a lot in common with that of the AfD. Following his win in the French presidential contest against the populist leader Marine Le Pen, Emmanuel Macron has continued the policy of his predecessors on the Conservative Right and the Socialist Left to refuse any collaboration with the Rassemblement National.48 Other conservative parties, notably in countries such as Hungary and Poland, have refashioned themselves as semi-​ authoritarian right-​ wing parties, which have effectively managed to defeat the populist parties as ideological competitors. This applies especially to Fidesz, which retains its absolute majority in the Hungarian parliament and has forced Jobbik to seek ideological solace among weak opposition parties. After the onset of the COVID-19 crisis, Orbán even managed, temporarily, to get parliament to invest him with powers to vote by decree. In the Czech Republic, where Prime Minister Andrej Babiš has displayed semi-​authoritarian tendencies, the right-​wing populists are needed to prop up his government without playing a pivotal role because other small parties are also involved, including the Communists. Thus, the degree of acceptance, by conservative parties, of the far-​right phenomenon in Europe can be variously measured by the flexibility or rigidity of the populist parties’ agendas, their electoral strength, and, last but not least, their potential function as government allies.

The populist right  155

Conclusion Contemporary right-​wing populist parties have had to dilute their radical agendas in exchange for direct or indirect government responsibility.49 But while setting the political agenda on issues such as immigration,50 no party has managed to monopolize power or form a government of its own. In contrast, the Conservative Right in Eastern Europe has, in some cases, not only been able to rule alone but adopted policies that threaten democratic norms and the rule of law. The authoritarian Right does not, however, fit the radical populist mold, because, as noted, it is better described as being nationalist, conservative, and traditionalist. Populism does not represent a revival of historical fascism, but an authoritarian turn becomes a real option if populist parties become powerful enough. It has been stressed here that the right-​wing populist phenomenon has various historical roots, including fascist ones, and that it should not be defined as a contemporary phenomenon associated with the establishment of a specific party formation. As Roger Griffin pointed out some time ago, the rejection of multiculturalism by the populist parties, their longing for “purity, their nostalgia for a mythical world of racial homogeneity” and for “clearly demarcated boundaries of cultural differentiation,” and their use of history represent a repackaged version of the same basic myth.51 Mudde and Kaltwasser’s argument that fascist parties were elitist rather than populist because of their ideological emphasis on the leadership cult and racial policies is misguided.52 Fascists adopted an anti-​elitist agenda, even if it was compromised by their collaboration with elites. After coming to power in Germany and Italy, there was fierce competition between the party and state, echoing an inbuilt tension between the old guard and the new. This helps explain why conservatives usually cooperate with the Radical Right parties out of necessity, not because of any close political, cultural, or social affinity. From a contemporary European angle, such an alliance is currently most clearly discernible in Scandinavia, but it has included other countries, such as Austria. Some populist right-​wing parties have been able to narrow their differences with mainstream right-​wing—​and even left-​wing—​parties by their ability to prioritize immigration. As the Scandinavian experience shows, they have almost exclusively thrown in their lot with the Conservative Right. Through electoral support and occasionally direct participation, they have made it possible for conservative parties to form majority or minority governments. This practice has made their rhetoric about transcending the right-​left paradigm, which was so characteristic of the interwar fascist parties, far less credible in practice. It also undercuts the erroneous, but often repeated, claim that all other political competitors are illegitimate. Yet, as in the past, there is an inbuilt tension within such conservative-​populist alliances between plebeian and patrician elements. Walter Benjamin claimed that one reason that fascism had a chance was that its opponents treated it as a historical norm. This is precisely the dilemma

156  Valur Ingimundarson posed by the right-​wing variant of contemporary populism: whether and how to differentiate between the moderate and radical formations, whether to normalize nativism and its racist implications as a counter-​argument to multi-​ ethnicity, or to stress majority rule at the cost of protecting minority rights. It is not a question of creating a new elite or a new Fascist Man. Still, as was the case in the past, the populist Right does not only challenge representative democracy; it also tempts the Conservative Right to normalize its exclusivist ideologies and practices.

Notes 1 See Walter Benjamin, “Theses on the Philosophy of History,” in Illuminations, trans. Harry Zorn (London: Pimlico, 1999), 247–​249. 2 On populism, see Cas Mudde, ed., The Populist Radical Right: A Reader (London and New York: Routledge, 2017); Cas Mudde and Cristóbal Rovira Kaltwasser, Populism (Oxford:  Oxford University Press, 2017); Federico Finchelstein, From Fascism to Populism in History (Oakland:  University of California Press, 2017); Kirk A. Hawkins, Ryan E. Carlin, Levente Littvay, and Cristóbal Rovira Kaltwasser, eds., The Ideational Approach to Populism:  Concept, Theory, and Analysis (London and New  York:  Routledge, 2019); Jan-​Werner Müller, What is Populism? (Philadelphia:  University of Pennsylvania, 2016); Nadia Urbinati, Me the People: How Populism Transforms Democracy (Cambridge, MA: Harvard University Press, 2019); Nadia Urbinati, Democracy Disfigured:  Opinion, Truth, and the People (Cambridge, MA:  Harvard University Press, 2014); Benjamin Moffitt, The Global Rise of Populism:  Performance, Style, and Representation (Stanford, CA:  Stanford University Press, 2016); John B.  Judis, The Populist Explosion: How the Great Recession Transformed American and European Politics (New York: Columbia Global Report, 2016); Chantal Mouffe, For a Left Populism (London and New  York:  Verso, 2018); Roger Eatwell and Matthew Goodwin, National Populism: The Revolt against Liberal Democracy (London: Pelican, 2018). 3 See Finchelstein, From Fascism to Populism in History. 4 See Piero Ignazi, The Extreme Right Parties in Western Europe (Oxford and New York: Oxford University Press, 2003). 5 Mudde, “The Problem with Populism,” Guardian, February 17, 2015, accessed February 8, 2020, www.theguardian.com/​commentisfree/​2015/​feb/​17/​problempopulism-​syriza-​podemos-​dark-​side-​europe. 6 Mudde and Kaltwasser, Populism,  18–​20. 7 Margaret Canovan, “Trust the People! Populism and the Two Faces of Democracy,” Political Studies 47, no.1 (1999): 2–​16. 8 Daphne Halikiopoulou and Sofia Vasilopoulou, “Support for the Far Right in the 2014 European Parliament Elections:  A Comparative Perspective,” Political Quarterly 85, no. 3 (2014): 286. 9 Richard Griffiths, Fascism (London: Continuum, 2006), 150–​152. 10 See Martin Blinkhorn, ed., Fascists and Conservatives. The Radical Right and the Establishment in Twentieth-​Century Europe (London: Unwin Hyman, 1990); Martin Blinkhorn, Fascism and the Right in Europe, 1918–​1945 (Harlow: Longman, 2000). 11 Mudde and Kaltwasser, Populism,  18–​20. 12 See Ernesto Laclau, On Populist Reason (London: Verso, 2005).

The populist right  157 13 Mouffe, For a Left Populism, 6. 14 Ibid., 21. 15 Ibid., 19. 16 Robert Cohen, “A Haider In Their Future,” New  York Times, April 30, 2000, accessed February 8, 2020, www.nytimes.com/​2000/​04/​30/​magazine/​a-​haider-​ in-​their-​future.html; “Haider in Context:  Nazi Employment Policies,” BBC, February 11, 2000, accessed February 8, 2020, http://​news.bbc.co.uk/​2/​hi/​europe/​ 639385.stm. 17 Laurent Bauman, “How to Reinvigorate Social Democracy to Fight Populism in Europe,” in Right Wing Populism in Europe—​How Do We Respond, ed. Ernst Hillebrand (Berlin: Friedrich Ebert Stiftung, 2014), 3. 18 Ernst Hillebrand, “Populism: The Errors of the Left,” in Right Wing Populism in Europe,  8–​9. 19 Müller, What is Populism?, 6, 10–​11, 76. 20 See Yannis Stavrakakis and Anton Jäger, “Accomplishments and Limitations of the ‘New’ Mainstream in Contemporary Populism Studies,” European Journal of Social Studies 21, no. 4 (2018): 547–​565. 21 Margaret Canovan, “Trust the People!” 2–​ 16; see also Stavrakakis and Jäger,”Accomplishments and Limitations of the ‘New’ Mainstream in Contemporary Populism Studies,” 561. 22 Urbinati, Democracy Disfigured: Opinion, Truth, and the People, 149. 23 Ibid., 137, 153. 24 Nadia Urbinati, “A Revolt Against Intermediary Bodies,” Constellations 22 (2015): 484–​485. 25 See Mouffe, For a Left Populism, 6, 11, and 36. 26 Aurelien Mondon, “The Front National in the Twenty-​ First Century:  From Pariah to Republican Democratic Contender,” Modern & Contemporary France 22, no. 3 (2014): 301–​320. 27 Gabriella Elgenius and Jens Rydgren, “Frames of Nostalgia and Belonging: The Resurgence of Ethno-​ Nationalism in Sweden,” European Societies 21, no.  4 (2019): 583–​602. 28 Reinhard Heinisch and Kristina Hauser, “The Mainstreaming of the Austrian Freedom Party:  The More Things Change …,” in Radical Right-​Wing Populist Parties in Europe:  Into the Mainstream?, eds. Tjitske Akkerman, Sarah L.  de Lange, and Matthijs Rooduijn (London and New York: Routledge, 2016), 73–​93. 29 On the Progress Party, see Anders Ravik Jupskås, “The Taming of the Shrew: How the Progress Party (Almost) Became Part of the Mainstream,” in Radical Right-​ Wing Populist Parties in Europe:  Into the Mainstream?, eds. Tjitske Akkerman, Sarah L. de Lange, and Matthijs Rooduijn (London and New York: Routledge, 2016) 169–​192; Elin Haugsgjerd Allern, “The Contemporary Relationship of ‘New Left’ and ‘New Right’ Parties with Interest Groups: Exceptional or Mainstream? The Case of Norway’s Socialist Left and Progress Party,” Scandinavian Political Studies 36, no.  1 (2013):  67–​ 90; Johan Bjerkem, “The Norwegian Progress Party: An Established Populist Party,” European View 15 (2016): 233–​243; Anders Ravik Jupskås, Persistence of Populism: The Norwegian Progress Party, 1973–​2009, Ph.D. diss. (University of Oslo, 2015). 30 See Anthony J. McGann and Herbert Kitschelt, The New Radical Right in Europe (Ann Arbor: University of Michigan, 1995). 31 Griffiths, Fascism, 150–​152.

158  Valur Ingimundarson 32 See Jens Rydgren, “Is Extreme Right-​Wing Populism Contagious? Explaining the Emergence of a New Party Family,” European Journal of Political Research 44 (2005): 413–​443. 33 See Jo Angouri and Ruth Wodak, “ʻThey Became Big in the Shadow of the Crisisʼ: The Greek Success Story and the Rise of the Far Right,” Discourse & Society 25, no. 4 (2014): 540–​565. 34 On Jobbik, see Varga Mihai, “Hungary’s ʻAnti-​Capitalistʼ Far-​Right and the Hungarian Guard,” Nationalities Papers 42, no. 4 (2014): 791–​807; see also Jeffrey Stevenson Murer, “The Rise of Jobbik, Populism, and the Symbolic Politics of Illiberalism in Contemporary Hungary,” Polish Quarterly of International Affairs 24, no. 2 (2015): 79–​111. 35 It is led by Björn Höcke, the leader of the AfD in Thuringia, where the party polled almost 25% of the vote in the 2019 regional elections. 36 See Jens Rydgren and Sara van der Meiden, “The Radical Right and the End of Swedish Exceptionalism,” European Political Science 18 (2019): 439–​455. 37 See “Italy’s Salvini channels Mussolini in Tweet on Late Dictator’s Birthday,” CNN, July 30, 2018, accessed April 15, 2020, https://​edition.cnn.com/​2018/​07/​30/​ europe/​salvini-​mussolini-​italy-​intl/​index.html. 38 On working class support for the Radical Right, see Daniel Oesch, “Explaining Workers’ Support for Right-​Wing Populist Parties in Western Europe: Evidence from Austria, Belgium, France, Norway, and Switzerland,” International Political Science Review 29, no. 3 (2008): 349–​373. 39 Julian Aicholzer, Sylvia Kritzinger, Markus Wagner, and Eva Zeglovits, “How has the Radical Right Transformed Established Political Conflicts: The Case of Austria,” West European Politics 37, no. 1 (2013): 113–​137. 40 See Müller, What is Populism?; see also Müller, “Populism and the People,” London Review of Books 41, no. 10 (May 23, 2019): 35. 41 Herbert Kitschelt, “Movement Parties,” in Handbook of Party Politics, eds. Richard S. Katz and William Crotty (London: Sage Publications, 2006), 280. 42 On the social basis of fascists, see Thomas Childers, The Nazi Voter: The Social Foundations of Fascism in Germany, 1919–​1945 (Chapel Hill: University of North Carolina Press, 1983); Jürgen Falter, Hitlers Wähler (Munich: C.H. Beck Verlag, 1991); Michael H.  Kater, The Nazi Party:  A Social Profile of Its Members and Leaders, 1919–​1945 (Cambridge, MA: Harvard University Press, 1983); William Brustein, “The Political Geography of Belgian Fascism:  The Case of Rexism,” American Sociological Review 53 (1988):  939–​950; Richard F.  Hamilton, Who Voted for Hitler? (Princeton, NJ:  Princeton University Press, 1982); Adrian Lyttelton, The Seizure of Power: Fascism in Italy, 1919–​1929 (London: Weidenfeld and Nicolson, 1973). 43 See Roger Griffin. International Fascism: Theories, Causes and the New Consensus (London: Arnold, 1998); Roger Griffin, “Studying Fascism in a Postfascist Age. From New Consensus to New Wave?” Fascism: Journal of Comparative Studies 1 (2012): 1–​17. 44 Robert Paxton, The Anatomy of Fascism (New  York:  Alfred A.  Knopf, 2004), 205. 45 Ibid. 46 On the Sweden Democrats, see Ov Cristian Norocel, “Populist Radical Right Protectors of the Folkhem: Welfare Chauvinism in Sweden,” Critical Social Policy 36, no.  3 (2016):  371–​390; Gissur Ó. Erlingsson, Kåre Vernbyb, and Richard

The populist right  159 Öhrvall, “The Single-​ Issue Party Thesis and the Sweden Democrats,” Acta Politica 49, no. 2 (2014): 196–​216; Maria Oskarson and Marie Demker, “Room for Realignment: The Working Class Sympathy for Sweden Democrats,” Government and Opposition 50, no.  4 (2015):  629–​651; Niklas Bolin, “A Loyal Rookie? The Sweden Democrats’ First Year in the European Parliament,” Polish Quarterly of International Affairs 2 (2015): 59–​77; Gabriella Elgenius and Jens Rydgren, “The Sweden Democrats and the Ethno-​Nationalist Rhetoric of Decay and Betrayal,” Sociologisk Forskning 54, no. 4 (2017): 353–​358; Ov Cristian Norocel, “ ‘Give Us Back Sweden!ʼ” A Feminist Reading of the (Re)Interpretations of the Folkhem Conceptual Metaphor in Swedish Radical Right Populist Discourse,” NORA  –​ Nordic Journal of Feminist and Gender Research 21, no. 1 (2013): 4–​20. 47 On Finnish right-​wing populism, see Niko Hatakka, “When Logics of Party Politics and Online Activism Collide: The Populist Finns Party’s Identity Under Negotiation,” New Media & Society 19, no.  12 (2017):  2022–​2038; Inari Sakki, Eemeli Hakoköngäs, and Katarina Pettersson, “Past and Present Nationalist Political Rhetoric in Finland:  Changes and Continuities,” Journal of Language and Social Psychology 37, no. 2 (2018): 160–​180; Àrpàd Welker, “Consolidation, Historiography and the Challenge of Populism in Finland,” European Review 21, no. 4 (2013): 489–​500. 48 Aurelien Mondon, “The Front National in the Twenty-​First Century,” 301–​320. 49 Ann-​Cathrine Jungar and Anders Ravik Jupskås, “Populist Radical Right in the Nordic Region: A New and Distinct Party Family?” Scandinavian Political Studies 37, no. 3 (2014): 215–​238. 50 See Linnéa Lindsköld, “Contradicting Cultural Policy: A Comparative Study of the Cultural Policy of the Scandinavian Radical Right,” Nordisk kulturpolitisk tidskrift 1 (August 2015): 8–​26. 51 Roger Griffin, “Interregnum or Endgame? The Radical Right in the ‘Post-​Fascist’ Era,” Journal of Political Ideologies 5, no. 2 (2000): 163–​178. 52 See Mudde and Kaltwasser, Populism, 33.

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160  Valur Ingimundarson Blinkhorn, Martin. Fascism and the Right in Europe, 1918–​1945. Harlow: Longman, 2000. Blinkhorn, Martin, ed. Fascists and Conservatives. The Radical Right and the Establishment in Twentieth-​Century Europe. London: Unwin Hyman, 1990. Bolin, Niklas. “A Loyal Rookie? The Sweden Democrats’ First Year in the European Parliament.” Polish Quarterly of International Affairs 2 (2015): 59–​77. Brustein, William. “The Political Geography of Belgian Fascism: The Case of Rexism.” American Sociological Review 53 (1988): 939–​950. Canovan, Margaret. “Trust the People! Populism and the Two Faces of Democracy.” Political Studies 47, no. 1 (1999): 2–​16. Childers, Thomas. The Nazi Voter:  The Social Foundations of Fascism in Germany, 1919–​1945. Chapel Hill: University of North Carolina Press, 1983. Cohen, Roger. “A Haider In Their Future.” The New  York Times, April 30, 2000. Accessed February 8, 2020. www.nytimes.com/​2000/​04/​30/​magazine/​a-​haider-​in-​ their-​future.html. Eatwell, Roger, and Matthew Goodwin. National Populism: The Revolt against Liberal Democracy. London: Pelican, 2018. Elgenius, Gabriella, and Jens Rydgren. “Frames of Nostalgia and Belonging:  The Resurgence of Ethno-​ Nationalism in Sweden.” European Societies 21, no. 4 (2019): 583–​602. Elgenius, Gabriella, and Jens Rydgren. “The Sweden Democrats and the Ethno-​ Nationalist Rhetoric of Decay and Betrayal.” Sociologisk Forskning 54, no. 4 (2017): 353–​358. Erlingsson, Gissur Ó., Kåre Vernbyb, and Richard Öhrvall. “The Single-​Issue Party Thesis and the Sweden Democrats.” Acta Politica 49, no. 2 (2014): 196–​216. Falter, Jürgen. Hitlers Wähler. Munich: C.H. Beck Verlag, 1991. Finchelstein, Federico. From Fascism to Populism in History. Oakland: University of California Press, 2017. Freeden, Michael. Ideologies and Political Theory:  A Conceptual Approach. Oxford: Clarendon Press, 1996. Freeden, Michael. “Ideology and Political Theory.” Journal of Political Ideologies 11 (2006): 3–​22. Griffin, Roger. International Fascism:  Theories, Causes and the New Consensus. London: Arnold, 1998. Griffin, Roger. “Interregnum or Endgame? The Radical Right in the ‘Post-​Fascist’ Era.” Journal of Political Ideologies 5, no. 2 (2000): 163–​178. Griffin, Roger. “Studying Fascism in a Postfascist Age. From New Consensus to New Wave?” Fascism: Journal of Comparative Studies 1 (2012): 1–​17. Griffiths, Richard. Fascism. London: Continuum, 2006. “Haider in Context: Nazi Employment Policies.” BBC, February 11, 2000. Accessed February 8, 2020. http://​news.bbc.co.uk/​2/​hi/​europe/​639385.stm. Halikiopoulou, Daphne, and Sofia Vasilopoulou. “Support for the Far Right in the 2014 European Parliament Elections:  A Comparative Perspective.” Political Quarterly 85, no. 3 (2014): 285–​288. Hamilton, Richard F. Who Voted for Hitler? Princeton, NJ:  Princeton University Press, 1982. Hatakka, Niko. “When Logics of Party Politics and Online Activism Collide:  The Populist Finns Party’s Identity Under Negotiation.” New Media & Society 19, no. 12 (2017): 2022–​2038.

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162  Valur Ingimundarson Mudde, Cas. “The Populist Zeitgeist.” Government and Opposition 39 (2004): 542–​563. Mudde, Cas. “The Problem with Populism.” Guardian, February 17, 2015. Accessed February 8, 2020. www.theguardian.com/​commentisfree/​2015/​feb/​17/​ problem-​populism-​syriza-​podemos-​dark-​side-​europe. Mudde, Cas, and Cristóbal Rovira Kaltwasser. Populism. Oxford: Oxford University Press, 2017. Müller, Jan-​Werner. “Populism and the People.” London Review of Books 41, no.10 (23 May 2019): 35–​37. Müller, Jan-​Werner. What is Populism? Philadelphia: University of Pennsylvania, 2016. Norocel, Ov Cristian. “‘Give Us Back Sweden!ʼ A  Feminist Reading of the (Re) Interpretations of the Folkhem Conceptual Metaphor in Swedish Radical Right Populist Discourse.” NORA –​Nordic Journal of Feminist and Gender Research 21, no. 1 (2013): 4–​20. Norocel, Ov Cristian. “Populist Radical Right Protectors of the Folkhem:  Welfare Chauvinism in Sweden.” Critical Social Policy 36, no. 3 (2016): 371–​390. Oesch, Daniel. “Explaining Workers’ Support for Right-​ Wing Populist Parties in Western Europe:  Evidence from Austria, Belgium, France, Norway, and Switzerland.” International Political Science Review 29, no. 3 (2008): 349–​373. Oskarson, Maria, and Marie Demker. “Room for Realignment:  The Working Class Sympathy for Sweden Democrats.” Government and Opposition 50, no. 4 (2015): 629–​651. Paxton, Robert. The Anatomy of Fascism. New York: Alfred A. Knopf, 2004. Rooduijn, Matthijs. “Closing the Gap:  A Comparison of Voters for Radical Right-​ Wing Populist Parties and Mainstream Parties Over Time.” In Radical Right-​Wing Populist Parties in Europe:  Into the Mainstream?, edited by Tjitske Akkerman, Sarah L. de Lange, and Matthijs Rooduijn, 53–​ 69. London and New York: Routledge, 2016. Rydgren, Jens. “Is Extreme Right-​Wing Populism Contagious? Explaining the Emergence of a New Party Family.” European Journal of Political Research 44 (2005): 413–​443. Rydgren, Jens, and Sara van der Meiden. “The Radical Right and the End of Swedish Exceptionalism.” European Political Science 18 (2019): 439–​455. Sakki, Inari, Eemeli Hakoköngäs, and Katarina Pettersson. “Past and Present Nationalist Political Rhetoric in Finland:  Changes and Continuities.” Journal of Language and Social Psychology 37, no. 2 (2018): 160–​180. Stanley, Ben. “The Thin Ideology of Populism.” Journal of Political Ideologies 13, no. 1 (2008): 95–​110. Stavrakakis, Yannis, and Anton Jäger. “Accomplishments and Limitations of the ‘New’ Mainstream in Contemporary Populism Studies.” European Journal of Social Studies 21, no. 4 (2018): 547–​565. Stevenson, Jeffrey Murer. “The Rise of Jobbik, Populism, and the Symbolic Politics of Illiberalism in Contemporary Hungary.” Polish Quarterly of International Affairs 24, no. 2 (2015): 79–​111. Urbinati, Nadia. Democracy Disfigured: Opinion, Truth, and the People. Cambridge, MA: Harvard University Press, 2014. Urbinati, Nadia. Me the People: How Populism Transforms Democracy. Cambridge, MA: Harvard University Press, 2019. Urbinati, Nadia. “A Revolt Against Intermediary Bodies.” Constellations 22 (2015): 484–​485. Welker, Àrpàd. “Consolidation, Historiography and the Challenge of Populism in Finland.” European Review 21, no. 4 (2013): 489–​500.

8  Public engagement An outline of a critical conception Jón Ólafsson

All over the world, there is growing demand for increased public ­participation and engagement in policy-​and decision-​making. This is seen not only in liberal democracies. Authoritarian governments also show interest in participatory policy-​making and a desire to create the impression of consulting the public on some issues. To be sure, the widespread interest in democratic innovations—​and the different reasons that motivate it—​present challenges to passing a general judgment on public participation as such. There is obviously a difference between mass enthusiasm kindled by a charismatic populist and genuine public support for innovative democratic projects. The question is where exactly the distinction lies. The examples where mass public participation has clearly and incontestably improved decision-​making are few. Some democratic theorists even argue that direct public participation in decision-​making is not necessarily a good idea and that democracy should rather be strengthened by increasing the quality of deliberation than by mass participation.1 There are tensions between liberal democracy and populist democracy, on the one hand, and between deliberation and mass participation, on the other. This chapter outlines a critical conception of public engagement in an attempt to address these tensions. “Critical” in this context refers to the search for normative conditions of democratic engagement based on an understanding that public engagement may strengthen democratic outcomes, but also undermine them. I will begin with a discussion of three fundamental challenges facing contemporary democracy, which the current interest in direct democracy, as well as the recent surge of democratic populism, have exposed. These challenges can be referred to as the democratic paradox, the democratic exception, and the irony of democracy. I maintain that the best argument to preserve competitive electoral democracy appears in the apparent democratic paradox where elected representatives are simultaneously expected to act for the sake of the common good and to do what the public at each moment happens (or seems) to want. I use what I call the democratic exception to show how democracy also depends on a balancing act between liberal principles and the will of the people. I refer to the idea of the irony of democracy to argue that democracy is a contingent framework of power, which is easily abused.

164  Jón Ólafsson This suggests that democracy should be judged by its potential results, not seen as providing sufficient conditions for a good society. A horrible society can still be democratic. In other words, the focus should be on democracy’s instrumental value, rather than on its intrinsic value.2 Democracy is sometimes pursued as a moral and epistemic necessity where direct involvement is sought for every decision.3 It can also be seen open-​ mindedly as a more general principle of public interaction and decision-​ making. Yet democracy may both protect and assail individual rights and liberties; it can be used to harass and repress, just as it can empower. I argue that when democratic principles are seen as absolutes, they may endanger individual rights. Democracy has no set of necessary or sufficient conditions. It works, rather, on the basis of recommendations. Democratic authority is both temporal and fallible. It is maybe not the most efficient way to gain power—​as can be seen when democratically elected leaders who get the opportunity may easily transit towards authoritarianism—​but it can provide a way to establish accountability on the basis of a complex relationship between executive authority and its legitimate sources. That is where its precarious value lies. The concept of deliberation has provided the standard way in democratic theory to present a critical notion of democratic practice, where democracy must include deliberative elements in order for democratic authority to be legitimate.4 Recently, however, deliberation itself has increasingly been seen as insufficient. Also important is who deliberates and how, since the quality of the outcome depends not only on what policies are determined—​and which decisions made—​but also on the cognitive and social diversity of policy-​and decision-​makers themselves, on the options they have, and on the conditions under which their input counts.5 Here I will not assume that liberal and deliberative democracy is the only legitimate form of democracy. Democracy has no ideal form. It is sufficient for my purposes to think of it as any system in which power is exercised either directly by the people or by representatives who are formally empowered to do so by the people according to some legal and procedural framework. I  claim that a better form of democracy can be achieved on the basis of a critical conception of public engagement, one that is sufficiently robust to, at least temporarily, resolve both the liberal/​populist and the participation/​ deliberation tensions. Even though democracy may be seen as intrinsically valuable, its instrumental value is, as noted, more important. It is a question of how democratic practices can be used to improve decisions and solutions, expose rather than rationalize dominance and subordination, repression, and harassment, and protect individual security instead of endangering it. I begin with a discussion of tensions and challenges unavoidable in democratic practice and show that democratic values are not independent. The value of democratic choice depends on principles, choices, and objectives external to democracy itself. I continue with a discussion of deliberative and epistemic democracy, arguing that in spite of considerable democratic know-​ how among the public in democracies, there is still no standard way in which

Public engagement  165 public reason can inform and influence government. I  maintain that deliberative and epistemic democrats are overly concerned with decision-​making processes and miss the importance of control over the executive branch and the administrative structures that belong to it.6 Finally, I argue that if civic democracy—​ deliberation outside the formal decision-​ making bodies and public institutions—​is to be successful, it is of primary importance to include rather than exclude groups that have previously been in a position to influence government directly, such as lobbyists, interest groups, and key officials, and seek to create the epistemic infrastructures that allow for a multilevel communication between decision-​making bodies and the public.7 My conclusion is that broad political agency is more important for the success of liberal deliberative democracy than mass participation or, for that matter, mass deliberation. By “political agency,” I have in mind general civic awareness of the ways and processes that need to be used to reach political goals, and how to strengthen public influence rather than demand absolute public control. Political agency empowers citizens and critically engages them. First, it depends on a more complex understanding of political society than in terms of public and authorities and, second, on recognizing that in a democracy any citizen should be in a position to “take” power—​that is, exercise influence on government in some particular way. In that sense, political agency also is not based on a formal or informal mandate but rather on citizenship alone.

Democratic outcomes and democratic practice The tensions I have outlined can be run together in the way shown in Table 8.1 where mass participation and deliberation are examined with and without liberal values. The table attempts to show four democratic combinations or outcomes. In 1A, the public directly decides who is in power (and maybe some other things as well) but under a demand not to infringe on individual freedom. In 1B, the same liberal values offer a framework for reasoned deliberation at the institutional level, which may lead to a softer form of liberalism where values such as equality and care justify intervention by the state to create a humane and fair social environment. In 2A, political leaders depend on mass incitement and are primarily concerned with (gaining and holding) power, whereas in 2B the populist promise to provide final solutions to social problems may give

Table 8.1 Four democratic combinations or outcomes

A. Mass participation B. Deliberation

1. Liberal values

2. Populism

Market liberalism Welfare (pluralist) liberalism

Authoritarianism Communism

166  Jón Ólafsson rise to a system that pretends to hold the keys to either scientific or religious truths and to base policies on them. For a lack of a better name, I call such a system “Communism”—​even though that term might be slightly misleading.8 We might be reluctant to talk about 2A and 2B as kinds of democracy, but since the question is about democratic outcomes rather than democratic practice, let us think of them as possible results of democratic choices. There are other, historically well known, forms of authoritarianism that do not depend on public support or mobilization. But the authoritarianism we are facing today is clearly of the populist variety. In the aftermath of the Cold War, many theorists believed that combinations 2A and 2B were permanently out of fashion.9 The future political debate would be about what kind of liberalism was desired, not about liberalism against some other options. The tensions outlined at the beginning seemed to them to have been resolved: while liberals would be more or less market or welfare oriented, the authoritarian and totalitarian dangers were gone, as were the left/​right divisions and, in the long run, class divisions as such.10 It is now evident that this view was wrong. Deliberative democratic ideals, and sustained efforts to strengthen deliberative practice theoretically as well as politically and practically have not created a political culture, let alone a sense of fairness or contentment that would permanently seal off non-​liberal versions of democracy. The very idea of what constitutes a fair distribution of social goods, fair opportunities, and reasonable economic equality has been severely attacked by political leaders who enjoy growing support in many different democratic—​and not so democratic—​countries.11 At first sight, 1A and 1B seem to offer a favorable environment for innovative democratic practices; 2A and 2B are clearly not favorable for empowering the public. Public support and mobilization are necessary for individuals or groups in power to maintain the confidence of elites and the impression of strength. Under authoritarian or communist government, leaders are preoccupied with either rallying the masses around their rhetorical projects or with guarding the ideological or epistemic framework they base their rhetoric on. We can see examples of both in current democratic authoritarianism. U.S. President Donald Trump wages a constant rhetorical battle on social media where the repetition of certain slurs signifies his political positioning and seems to play a key role in his appeal to what is often referred to as his “base.”12 The Russian President Vladimir Putin, on the other hand, cunningly weaves a web of all-​encompassing nationalism where Russia retains its identity and appeal through different eras, with the Russian revolution just being one event in Russia’s evolving statehood together with a global leadership role.13 The liberal outcomes, however, look more benign than they might actually be. The common assumption is unwarranted that liberal governance offers more opportunities for the public to engage in policy-​and decision-​making—​ and that knowledge, reflection, and fairness are values that may even affect

Public engagement  167 liberal government more than the need for control. The institutional structure of liberal government is certainly vulnerable to infiltration and capture by special interest groups and powerful elites; democratic elections may merely signify a transition from one power group to another. But it is an illusion to think that the particular kind of power struggle that a liberal government allows equals opportunity or access to decision-​making on the basis of common values.14 As some authors have pointed out, the political hegemony of market liberalism—​neoliberalism—​was not seen as a sign of a new hegemony but as unforced social development.15 Democratic innovations have been tightly controlled and only rarely have they seriously influenced policies.16 It is important to understand the systemic reasons behind the lack of impact of liberal deliberative democracy and, consequently, the ineffectiveness of democratic innovations that follow from it, directly and indirectly. The standard explanation given by deliberative systems thinkers is that deliberation has a limited scope. They argue that deliberative qualities need to be cultivated along the whole spectrum of public institutions in order to be effective.17 1A and 1B do not affect the structure of executive power, even if these outcomes provide support to public institutions. Deliberative civic inclusion, however, must do more. It should channel reasons, deliberation, and knowledge into governance, ensuring the continuity of the public realm—​ public reason with the practice of government. The principal problem remains:  how is continuity between deliberative structures and executive power structures ensured? Proponents of deliberative systems—​thinkers who acknowledge that deliberation appears in many different forms and parts of a democratic society—​do not have an answer to that.18 Innovative consultative or decision-​making schemes are often proposed or created without the necessary means to follow up on its results through the executive. Their success will, therefore, depend on the enthusiasm about them by officials, elected or appointed, in public institutions. The four outcomes that Table 8.1 schematizes hint at very different yet democratic scenarios. My suggestion is that there is no quality of democracy that enables us to draw a clear normative distinction between them. 2A and 2B are unattractive from a liberal point of view, but that does not rule them out as undemocratic. 1A may be considered less attractive than 1B (or vice versa). But the reasons would not have to do with the quality of democracy. The comparison of these four different democratic outcomes simply shows that democracy can be used for many different purposes. It can serve authoritarian ends just as liberal ones. Participation and public engagement are easily adapted to the overall agenda set by those in power at any given time—​for better or worse. For example, under Communism in the Soviet Union and Eastern Europe, public participation was central to the social structure; citizens were to be active participants in social and political events, with young people joining the Communist youth league, etc. But this participation was designed and coordinated to increase the legitimacy of state policies, not to make the public influence the decision-​making itself.19

168  Jón Ólafsson One may argue that a main reason for the current crisis of democracy (not per se a new phenomenon) is the renewed attractiveness of authoritarian alternatives as outlined in 2A and 2B.20 That people across different countries might prefer authoritarianism to liberalism is, in a nutshell, what the crisis is about. One way to react to this challenge might be to increase deliberation at all levels of government. Before addressing that, I want to point out that there are certain characteristics of democratic rule, which need to be made explicit to show that this crisis cannot simply be countered with “more democracy.” These characteristics produce the three challenges that I outlined at the beginning of the paper: the democratic paradox, the democratic exception, and the irony of democracy. The democratic paradox is easy to see and often discussed. Democratically elected representatives may not act as the public wants or demands at any particular moment, but rather in accordance with what most people want in the long run. That raises the question of how they represent their voters. Political representation exists within a paradox. Representatives are elected to do what the public, or, at least, their voters, wants them to do, but that may require that they act against what the public (their voters) wants now.21 The pervasiveness of the view that representatives should not follow public moods can be seen by how political virtues are often defined in direct opposition to popular views. One political virtue is steadfastness:  to remain unaffected by public opinion. But that means it can be virtuous to resist rather than to submit to public opinion, including that of one’s own supporters. Politicians who advocate difficult or unpopular, if “necessary,” policies are often portrayed as truly committed to the common good. Representatives can, in that sense, be described as society’s secondary reason. The public may be fooled by forces of various kinds demanding action; the representatives are not, however. In electing them, voters can, therefore, expect them to delay and restrain action in certain cases, even expect their representatives to do what they themselves at times of great emotion would not want them to do.22 In another comparison, they serve as society’s higher-​order contemplation. Having privileged access to information and analysis and a vantage point to make better decisions not limited to the public’s bounded rationality at one time or another, they are in the best possible position to make enlightened decisions.23 The paradox is an unavoidable part of democratic rule. What it illustrates is that the choice representative government faces cannot be reduced to acting with or against public opinion. Some negotiation between various different options and choices must take place; this is the substance of representative politics. The real question, then, is what kind of negotiation this must be, between whom, and about what. The understanding (or access to) the trade-​ offs the paradox produces is key to acknowledging public decision-​making.24 In his State of Exception, Giorgio Agamben describes a “no man’s land between public law and political fact” characterized by the ambiguity inherent in the state’s responding to “the most extreme internal conflicts.”25 Government, by proclaiming a state of exception, creates conditions where

Public engagement  169 rights of individuals—​ a primary concern in liberal theory—​ become secondary, suspended by the necessity to overcome limits to executive action. Agamben’s notion of exception captures how liberal governments use the rhetorical device of a threat to the social order to justify upending that order. Threats, in the form of international terrorism, anonymous hackers, fake news factories, a pandemic, etc., justify or demand institutional response based on public acceptance, which is gained by the perceived necessity of such response. It is the exercise of democracy without choice, where critical assessment of that choice is considered unnecessary or harmful. By extension, the concept of democratic exception refers to an assumption or claim that democratic justification of a goal or policy is sufficient justification of whatever is seen as the most efficient means for reaching that goal. In this view, democracy creates exception to the extent that other considerations are unnecessary or irrelevant. This view is also related to Hannah Arendt’s famous account of Adolf Eichmann’s trial as a manifestation of the “banality of evil.” Arendt describes how Eichmann justifies his participation in the Holocaust not in terms of a primitive notion of obedience to state authority, but by putting on a show where his professionalism directs him to high performance not questioning the moral quality of the project within which it is exercised.26 Democratic exception appears when non-​democratic principles are simply ignored in the justification of public policies, such as when minority views are discounted or the rights of minorities disregarded. It is quite possible to think of situations where democratic choice is thoroughly misguided in this sense, yet no less democratic. Democratic exception undermines the value of democratic justification and supports the idea that democracy should not be seen as intrinsically valuable. Democratic governance rests on the shared view that legitimate authority to make collective decisions has its origins with the people who in some orderly fashion either make such decisions themselves or transfer decision-​making power to individuals or institutions. Liberalism outlines limitations of institutional power by the rule of law. Richard Rorty’s “bourgeois liberal” is the person who understands how democracy is always under threat by itself. In a functioning democracy, the intellectual and epistemic quality of complicated decision-​ making is often low; democratic decisions can rarely be shown to be better than decisions made by experts or officials, yet they are given a higher status. To understand this and yet continue to support democracy is to understand the irony of democracy.27 Democratic ironists are able to separate the belief in democracy from the practice of democracy: to believe in the power of democratic choice is also to accept the contingency of that choice realizing that democratic principles do not trump other principles all the time. The lack of irony creates the democratic exception, which can result in either democratic totalitarianism or it leads to liberal cynicism. By being ironic, one is able to do both: practice democracy and sidestep it. To see its contingent nature allows one to approach it as the “art of the possible”—​as an optimal way to further political goals given

170  Jón Ólafsson external constraints, such as a liberal framework and a rule of law. I argue that in order for democracy to work, its practice must take into account that other ways of governing are possible—​and justifiable. Public decision-​making must meet a justificatory demand that may include general rules such as to avoid cruelty or respect equality. The ironist believes in democracy realizing that he or she might also believe in something else. The irony of democracy helps prioritizing the instrumental value of democracy over its intrinsic value, understanding democratic and liberal trade-​offs, and, therefore, helps separating bad forms of democracy from better ones. The three challenges I have described here complicate democratic choice and cast a shadow over it. They show that in overcoming the tensions, an awareness must arise to pitfalls of democracy. Public engagement in policy-​ and decision-​making must involve an understanding that democratic justification of a choice—​in the sense of majority will or consensus—​is simply one of many possible justifications of public policies or decisions.

Deliberative democracy and beyond In the late 1980s, deliberative democracy revived democratic theory. It is based on a simple idea:  why think of democratic decisions as based on compromises between groups representing different interests? Why not think of such decisions as a collective effort for the common good by free and open deliberation “on the basis of equal status and mutual respect”?28 Deliberative democracy has transformed democratic practice, yet it has been only partially successful. First, while deliberative democracy does not exclude majority rule, through its emphasis on reason and on reasoned decision-​making, consensus tended to be thought of as the worthier goal of deliberation.29 Consensus orientation, however, has largely come to be seen as overly idealistic and even under some circumstances not desirable. The virtue of deliberation is its attention to different arguments and different sides of arguments.30 But even if consensus is not necessary, deliberation complicates decision-​making without clearly showing that paying attention to different kinds of reasons and considerations improves public decisions or governance.31 Second, deliberative democracy has not been successful in reframing democracy to strengthen the influence of the public sphere on political decision-​making. If a democratic process prioritizing deliberation successfully facilitates inclusion, policy-​making should also be more deliberative. But deliberative democracy tends to focus on the quality of deliberation rather than on who deliberates. Many deliberative democrats have expressed doubts about the wisdom of mass participation in democratic decision-​making, arguing that given a choice of mass participation or civic deliberation we should go for the latter, even if that means limiting deliberation to “mini-​publics.” Attempts to develop deliberative democracy—​the most powerful attempt being perhaps the Deliberative Poll developed by James Fishkin—​have clearly

Public engagement  171 influenced democratic politics worldwide, and even (for better or worse) provided democratic tools in non-​democratic societies. Fishkin argues that deliberation improves policies and that the considered views of citizens who have a chance to study and discuss the issues are valuable as a resource for policy-​making, also in some authoritarian societies.32 The deliberative poll uses a mini-​public to simulate large-​scale deliberation, making it possible to understand how public opinion could evolve if everyone actually engaged in a deliberation.33 The most forceful objections to this vision either reject the mini-​public method or deliberation itself. Ian Shapiro recommends that we abandon deliberation for a Schumpeterian system of political competition where the public is not bothered too much with public discussion or opinion formation, but rather empowers and disempowers parties which continuously challenge each other. Shapiro argues that deliberation is not a useful tool for policy-​making. Rather, we should aim for competent argumentation where the public’s role is to select the candidate or party that wins the debate.34 Recent developments in established Western democracies, however, have increased worries about just this kind of competitive politics. The competition for power deflects political debate away from actually engaging with fundamental political ideas. While Shapiro points out that it is difficult to make sure that deliberation does not degrade into bargaining, it is the competition for power inherent in electoral democracy that to some is the real reason for such a degradation, prompting ideas about abolishing or, at least, minimizing the impact of competitive elections.35 These worries have led to a different understanding of the stakes of deliberation. Instead of seeing it as a way to seek consensus about important policy decisions, its impact on general knowledge and voters’ understanding is in the foreground. The emphasis is, thus, on the systemic and epistemic value of deliberation.36 If deliberation can be managed so as to increase at the same time public engagement and the quality of public judgment, it is clearly an attractive alternative to populist politics. The outcome of such deliberative exercises is more promising than the outcomes of opinion polls and will, under the right circumstances, deliver “considered” public opinion better than other sampling methods may. The idea of enhancing public choice, not via mass participation but in a gradual educative way, some philosophers find very appealing.37 But the use of mini-​publics has also been severely criticized for actually abandoning the public dimension of deliberation. Cristina Lafont argues that since the only effective way to use them is to empower them, proponents of mini-​publics are, in fact, recommending that deliberation for public decision-​ making be removed from public space and into the closed confines of deliberative groups whose reasoning is then going to be seen as superior to what goes on in the bigger society. The public consequently is supposed to defer blindly to such deliberative assemblies. That, according to Lafont, is directly the opposite of what deliberative democracy is about: increase the deliberative

172  Jón Ólafsson content of public decisions, involving citizens to a greater extent in monitoring and shaping the reasoning.38 Some critics of the mini-​publics approach point out that current social media technology makes it possible to create deliberative platforms on a much larger scale than ordinary (face-​to-​face) mini-​publics do. This applies in particular to those deliberative democrats who are interested in epistemic democracy. For them, deliberating in mini-​publics is not enough, and there is no reason why we should not exploit the possibilities of modern technology to extend deliberation to the masses. We should, in other words, be able to have both mass participation and deliberation. Yet worries about low-​quality deliberation on the one hand, special interest takeover and hijacking by well organized groups on the other, reduce the attractiveness of crowdsourcing platforms, even if technology allows for mass deliberation. Some theorists also point out that the quality of political discussion should not be measured in regard to problem-​solving, since political engagement is about debating ideas and value systems. Democratic reason, after all, is not so much about problem-​solving as about normative ideals. Crowdsourcing exercises thin out political thinking by converting it to managed problem-​solving. Therefore, one could argue, although they might offer interesting ways to reform decision-​making on the administrative level, they do nothing for democracy itself. The argument has also been made that by focusing on the problem-​solving part of politics, as epistemic democrats seem to do, an overly technical viewpoint is adopted, creating the impression that the “depoliticization” of the political process is a desirable goal.39 A comprehensive attempt to strengthen the idea and theory of deliberative democracy is the so-​called deliberative systems approach. From its perspective, an outright dismissal of deliberation is out of place. The question is not whether we should support deliberation or argumentation as Ian Shapiro seems to think, but rather whether deliberative structures can be supported and strengthened institutionally as well as in the public realm. We also must acknowledge according to this that deliberation has a role in non-​democratic societies as well. Even where electoral choice is limited, either formally, for example, by some monopoly rule, or with more informal methods, such as in hybrid democracies, the citizens may be encouraged (or required) to take part in making decisions on specific issues, frequently of local concern. The systems approach certainly helps understand the enormous role of deliberation in a modern society where public decisions must be based on some reasoning, which is, at least, communicated from decision-​makers to the public. But it does not solve the problem of power, inherent in Shapiro’s position. One part of the democratic paradox is the power-​seeking nature of political activism. Since politicians seek support from the public, the deliberative quality of decisions is never a sufficient reason for making them. Whatever deliberation does, it cannot deliver public support—​or support of any kind—​ only the hope of it. Public campaigns and strong interest groups may be able to mobilize forces that pose a threat to political mandate. In other words,

Public engagement  173 power rather than deliberation controls the results of public decision-​making. Deliberative democracy has, thus, not achieved any change in power relations, which in most or all democracies remain thoroughly Schumpeterian. Here one can agree with Shapiro. It is an open question, however, to what extent deliberative approaches have succeeded in deflecting policy-​and decision-​ making within democratic institutions away from pure political bargaining, toward a stronger demand for reason-​giving. I have suggested that the discontent facing liberal democracy is partly a result of a discontinuity between public reason and public decision-​making. Epistemic democracy is one way to address that discontinuity by seeking to improve democracy itself. Epistemic democrats tend, like the populists, to look toward the public—​the crowd. But since they are looking for smart solutions rather than the will of the people, political competition is seen as one of the main sources of evil. If political competition could be abandoned and other kinds of representation would replace elections, sortition for example, and a more systematic use be made of mini-​publics, then we would be better able to harness the wisdom of the crowd and create a more direct link between public reason and political decisions. Since the cognitive diversity of the public enhances its epistemic power, publicly made solutions are also likely to be smart, if not distorted by special interests.40 But there is an implicit assumption here, which is far from being justified:  that a diverse crowd will be oriented toward optimal solutions by following the “force of the better argument,” which is, then, assumed to be sufficiently clear, rather than toward creating blocs to achieve majority dominance. Ignored in this context is the irony of democracy. The belief that cognitive diversity will confirm democracy’s superiority over other kinds of decision-​making treats democracy as a sufficient condition of smart decision-​ making. This forms the basis for the belief that true or genuine democracy is bound to seek worthy ends. Against this goes the argument that any particular goal sought by democratic means neither undermines nor strengthens democracy. Any crowd may seek any goal democratically. In order to evaluate objectives, one must go beyond democracy:  whether a certain objective is worth seeking or not should pose a limit on democracy rather than be democratically selected. The question of what goals are valuable is contingent on a broad spectrum of other values and “vocabularies” (to use Rorty’s term). Determining them democratically is moot, even if they will be tested democratically. Ignoring irony, in my view, also causes a certain blindness to power. Democratic decisions are independent of the values these decisions express, but the effectiveness of a democratic system depends on its ability to enforce its decisions. The form of the executive and the structure of public administration are a major causal factor in how power is exercised. In modern democracies, the competition for power is not solely or singularly about gaining parliamentary majorities; it is for the control of the executive: the power to form and run government. Real power comes to political parties and elites

174  Jón Ólafsson when they can divide among themselves the executive positions through which they actually control governmental action and planning. The problem-​solving attitude of epistemic democracy is analogous to the consensus orientation of deliberative democracy. Both epistemic and deliberative democracy stop at decision-​and policy-​making. The importance of executive power is, therefore, underestimated. The focus is put on deliberation that precedes or directs decision-​making, rather than on the process of enforcing (or not enforcing) public decisions. It is sometimes just assumed that a clearly expressed public will should simply (mysteriously) translate into policy. But experience shows that much more pressure—​or infiltration—​ of government or public administration is needed for such translation to happen. Clearly expressed views will still be open to different interpretations; even outcomes of civic assemblies or referendums can be sidestepped or ignored.41 The notion of politics as “the art of the possible” offers a practical suggestion:  political agency depends on mastering strategies to accomplish set goals. The ability to do so in a democratic environment requires skills, many of which are based on experience and social capital. To concentrate on the decision-​making process is not enough. Competition for power is in part about controlling the decision-​making process, but the real competition is for power to act—​independently of whether such power is subject to direct elections, administrative appointments, or, say, a revolution. In order to influence or direct governmental action, direct influence on the government is needed, either through executive office or by influencing assumptions and practices of public officials, the specialized enforcers of policy buried behind the protective walls of government, liberal and authoritarian alike.42 If democracy is in crisis, then that applies also to deliberative democracy. The emphasis on reasons and reason-​giving in order to improve decision-​ making and increase deliberative quality and diversity through transparent and accessible policy-​ making is not sufficient to overcome the tensions I described at the outset, between populist and liberal outlooks, and between participation and deliberation. Deliberative democracy based on liberal values may look like an attractive kind of democracy, but it does not ensure the required democratic continuity between elected representatives and citizens. This failure may suggest that full democracy is an unreachable goal. Mass participation does not necessarily promote public reason, and deliberation reconstructs civic engagement as deference to the “better argument”—​ whatever means we have to determine which of the available arguments is best. Political reason is hostage to the interests that define access to power, and to defy those interests, populist rhetoric harnesses the public spirit. In this environment, public participation has no clear value. Political leaders must do what (they believe) is for the best even as madding crowds demand different action. But how can resistance to what the public may demand be reconciled with the idea that democracy is primarily about engaging the public? An interesting case that illustrates well how difficult it is to insert an innovative decision-​making scheme into a well-​established political process

Public engagement  175 is the much-​discussed Icelandic Constitutional Council. It can be seen as an extreme version of the idea that an external body of decision-​makers can fully determine the outcome of a political process. The Constitutional Council was created in 2011 on the basis of a directly elected Constitutional Assembly and was given the task to revise the Icelandic constitution. One of its decisions, made at the beginning of its revision and rewriting process, was to work independently of other democratic institutions, in particular the Parliament.43 Its members took themselves to be the true representatives of the people since they had been directly elected in a process set forth as a measure to increase trust in public decisions after the financial crisis of 2008, which severely shook Icelandic society. The Constitutional Council’s decision to ignore other political institutions—​it would consult individuals and respond only to proposals made by individuals—​effectively made it politically powerless. When it swiftly produced a new Icelandic constitution and submitted it as a constitutional bill to the Parliament, the first result was awkward confusion. Although many MPs supported it, no work had been done to ensure and strengthen support in the Parliament, and it took a whole year for a leftist parliamentary majority to figure out what to do with it.44 Even after a referendum had been held in which the voters overwhelmingly approved of using the new constitutional draft, created by the Constitutional Council as a “basis for a new constitution,” no real momentum was created in the Parliament, where the issue simply got stalled after a few months. A plausible explanation for the debacle is gained by looking at the absence of political agency. MPs did not feel that what the Constitutional Council handed down to them was binding for them, and even after a consultative referendum they would still point out that constitutionally, as elected political representatives, they were obligated only to do what they thought was right, that is, to follow their conscience.45 The argument frequently made—​when the Parliament had postponed the issue indefinitely—​was that elected representatives were morally obligated to act in accordance with the results of the Constitutional Council reinforced by the results of the 2012 referendum. Voting behavior, however, was largely unaffected by the constitutional issue. None of the major parties would profit from putting constitutional reform on their agenda. The moral obligation—​ which arguably was there—​did not translate into political necessity. Since no groundwork had been laid for political agency to support the constitution and no political ownership created with those who had to follow up on what the Constitutional Council delivered, success—​notwithstanding general public support—​was impossible. The lesson, I  conclude, is simple. The main reason for the Council’s failure came from the freedom it was given to decide on its own task. The lack of interference was to begin with well received by Council members who interpreted it as a de facto acknowledgment of its political role and felt empowered.46 In reality, however, it meant that the Council was disconnected from the institutions that in the end had the power to decide what to do

176  Jón Ólafsson with its proposal. Thus, effectiveness may diminish rather than grow with empowerment. Since neither the Parliament nor the government was part of crucial decision-​making in the Constitutional Council, the meaning of its work was moot from the start and the product in the end too weak to survive opposition.

Inclusive decision-​making The failure of the Constitutional Council suggests that, if decision-​making schemes set up outside the regular structure of public institutions are to be effective, their work must also be inclusive. Public support is clearly an important part of a justificatory scheme for public decisions in a democracy. But this does not mean that such support is sufficient grounds for policy-​ making. Policies have to be enacted on the basis of present parliamentary majorities, but the expectation of future majority is also an important consideration. Policies do not survive unless they either enjoy broad, long-​term support (which may not be necessary at the time of the decision-​making) or are so hard to overturn or undo that future support is irrelevant. Populists tend to play their hand as if present majority justifies any policy, claiming that even highly contested decisions reflect the people’s will.47 Moreover, the future of policies depends partly on “intermediary bodies” (such as the press, organized political movements, etc.) which populist campaigning usually seeks to undermine.48 Deliberative democrats tend to think that a policy is justified if good, transparent, and explicit reasons favor it. From the perspective of epistemic democracy, if a policy has been generated by a process that sufficiently reflects cognitive diversity, that might justify it irrespective of the question of future support—​or simply on the basis of the value of the policy itself (that is, it will prove itself right). The claim that future support is an important consideration might be seen as a lapse into old-​school bargaining, if it is seen as possibly unrelated to correctness or the common good. I want to argue something different—​namely, that the promise of future support rests in present inclusion, rather than numerical support. By inclusion, I am not specifically referring to marginalized groups, but rather to the acknowledgment that to ignore groups whose epistemic access to certain aspects of decision-​making may be closed or, at least, less accessible to others, undermines the strength of policies. In the case of innovative policy-​making processes, the lack of inclusion may result in failure, as the Icelandic constitutional experiment testifies to. Four main groups have distinct roles in democratic governance (certainly this can be broken down differently or subgroups added, but for my purposes this fourfold division is sufficient). These groups are the public (the vast majority of the people numerically speaking); special interest groups that control business, industrial production, resource management, communication, union work, etc.; professionals and administrators possessing the

Public engagement  177 specialized knowledge needed to maintain societal institutions; and, finally, elected officials. These groups have different roles, but they also depend on each other. For important political objectives to be reached, they all need, in some way, to be involved. The reason is epistemic rather than corporate:  The cognitive difference between these groups requires an epistemic infrastructure to share views, information, and understanding. If one or more of these groups is not included, a missing perspective will place serious limits on understanding the future viability of policies. As shown in Table 8.2, the groups can be described as having certain key strengths and limitations; their positions reflect a difference in what they can achieve and their input can also be used in different ways in an inclusive policy-​or decision-​making situation. In a representative democracy, politicians or elected officials lead policy-​ making depending on post-​election roles they have been assigned as government ministers, committee chairpersons, etc. But their leadership is not a necessity: NGOs and other public groups can take the lead; stakeholders often do so through lobbying efforts and various formal and non-​formal ways to influence decision-​makers. Also, decision-​making can be outsourced to other groups than elected officials, such as mini-​publics or the public at large through crowdsourcing. Finally, public officials and the more experienced staff in public administration usually accumulate considerable power by controlling agenda-​setting positions where superior knowledge and experience ensure influence on the way policies are made strong or weak. The relative strengths and weaknesses of the different groups outlined here reinforce the necessity of not only shaping ways for the public to influence decision-​makers, but for the different groups to influence each other. The Habermasian two-​tiered system of democratic policy-​making remains the main framework to justify representative democracy. Its problem is the lack of reason to believe in a continuity between a free and open discourse where public reason flourishes, on the one hand, and disciplined decision-​ making, on the other. The populist response is to attack democratic liberal institutions. But the epistemic response—​if it is simply to insist on more direct public engagement—​does not offer much more. A critical conception of public engagement must also have an account of political agency that Table 8.2 Main groups in democratic governance: strengths and limitations

Strength: Limitation: Achievement: Utilization:

Public

Stakeholders

Specialists

Politicians

Diversity Unaccounta-​ bility Opinions Consult

Focus Special interest Demands Consider

Expertise Narrow-​ mindedness Truths Understand

Know-​how Political agenda-​setting Decisions Recognize

178  Jón Ólafsson connects epistemic potential and political power and offers a way in which different groups communicate. Political agency, as I am using this concept here, is acting to reach political objectives: to cause, press for, or influence public decision-​making. In liberal democratic society, political agency is a civic necessity and offers an opportunity for groups and individuals to exercise power without having any formal right to do so beyond citizenship. The formal role of civil society, however, is not uncontested, and some thinkers claim that political agency should be seen as an individual rather than a group agency. Since power by civil society is not formal, it also lacks formal limitations. Elected officials and appointees to executive office, elected or not, have a formal role and permissions, but their powers—​in a liberal democratic society—​are exercised under clear limitations. Those limitations, in fact, also restrict the powers of the public as a whole, or individual civic groups that only become political agents by inserting themselves into decision-​making processes controlled by officials. The same can be said of specialists of various kinds as well as representatives of special interest groups. Political agency, therefore, depends on how power is managed by appointed or elected officials. One of the main goals of democracy is to design the epistemic infrastructures to include, properly and legitimately, not only those with formal policy-​and decision-​making roles but also, in some systematic manner, civic groups and individuals who simply want to be part of policy-​making in some areas. One of the characteristics of authoritarian government is hostility to political agency by individuals and informal groups. This can be clearly seen by how fledgling democracies in Russia and in some Eastern European countries have returned to authoritarianism in the last few years. The governments in these countries have attempted to minimize political competition without abolishing elections, creating what is sometimes referred to as a “hybrid government,” where elections are tightly managed, but may still create the impression that different political movements engage in a competition for power, even though no transfer of power actually takes place.49 The success in upholding this impression can be explained with the achievement to neutralize and delegitimize independent institutions that serve as the necessary vehicles of public scrutiny, such as the media, experts, civil society groups, and some special interest groups.50 It is not the suppression of direct public participation and engagement that undermines democracy in countries such as Russia and Turkey, but the suppression of political agency and attempts to control different sectors of society—​ civic, cultural, educational, and private enterprises—​depending on regime agendas.51 At the same time, these regimes may be eager to involve the public in local projects, such as participatory budgeting, environmental protection, or energy policy.52 The suppression of political agency is a fundamental deviation from liberal democracy, which exposes the democratic exception. Illiberal governments pursue democratic policies, while, at the same time, undermining the epistemic

Public engagement  179 infrastructure needed for full democratic inclusion. One could say that when it becomes a general understanding that liberties depend on winning the trust of the government, political agency is controlled by government. With that the two-​tiered Habermasian system has been turned on its head. When civil society and independent organizations of different kinds, public and private, need to gain the trust of the government, and not vice versa, public participation and engagement serve primarily to strengthen authoritarian government and legitimize oppression.53 Deliberative and epistemic democrats tend to overvalue the significance of direct public involvement in policy-​and decision-​making and, therefore, overestimate the normative force of “considered public views” for political leadership.54 This can result in a shallow criticism of democratic government blind to paradoxes, exceptions, and ironies of democracy.

Facing the challenges—​political agency I have argued that the success of democracy requires acknowledging that majority demands must at the same time be avoided and heeded, resisting the illusion that temporary priorities necessitate only one particular course of action and accepting the contingency of democratic choice. In order to face these challenges, it is necessary to move away from the idea that some singular form of public engagement can save democracy. A critical conception of public engagement rests on the general idea of political agency, outlined above, which instead of focusing engagement on participation in decision-​ making, reaches different levels of government. A membership in a political society means having access to political processes and being acknowledged as a stakeholder in regard to any government action. In State of Exception, Giorgio Agamben points out that the tendency to go beyond the limitation of legal boundaries characterizes liberal governance—​ a tendency to increase control due to circumstances that are supposed to justify and even require action for the sake of security and well-​being of citizens. But at the same time, the exception not only curtails particular civil liberties but normalizes interference on a deeper level, constituting growing control over everyday behavior. The clearest examples of this can be seen in the edicts of public health policies. By using the term “democratic exception,” I try to extend Agamben’s basic notion to situations where only one course of action seems possible. The COVID-​19 pandemic shows what this means:  while different governments reacted to the health crisis in different ways, in most countries, there was a strong public pressure to impose measures likely to minimize the number of infections among the public. A different goal would be not to minimize the number of infections, but to manage the outbreak so as to avoid the situation where the health care system would be overwhelmed by patients in need of specialized treatment, that is, by protecting the most vulnerable, reducing, not entirely bringing down to zero, the daily numbers of new infections, etc. In

180  Jón Ólafsson developed countries, the tendency was—​with a few exceptions—​to move away from the latter goal and toward the former, justifying more comprehensive and forceful state intervention. Democratic exception may, temporarily, seem to break up the democratic paradox since it is the situation where public demands concur with the inclination of government toward more comprehensive control. But the democratic paradox is, after all, benign. It presents authority with possibly incompatible choices: on the one hand to do what seems right; on the other, to comply with the expressed will or demands of the public. While the paradox is a constant reminder of a narrow path, representing the art of the possible, through which successful policies must be led, the democratic exception conceals incompatibilities and instead installs the illusion of absolute control. The liberating factor is brought by the irony of democracy, which allows for the question what it is to believe in democracy. Democratic exception results in a blindness to different options. The irony of democracy, on the other hand, makes it possible to ask whether the vocabulary of democracy is suitable in a given case. In some situations, such democratic vocabulary (where it is right and proper to inquire about the will or opinion of the public) may give way to the vocabulary of responsibility, where the principal concern is whether and to what extent consequences can be foreseen and controlled. In parliamentary democracies, the real competition between political parties is about reaching the position where legislative seats translate into executive office. To replace the elected legislature partly with, for example, randomly selected assemblies empowered to make binding decisions, may therefore be less effective than formal arrangements may imply. The question remains how alternative structures of policy-​making can influence governmental action too. This, I  argue, requires political agency, the attempt to influence not only policy-​making but also the way government and public administration work. A critical conception of public engagement requires political agency at different levels of government. Civic inclusion can be achieved at many stages of the decision-​making and executive process. The irony of democracy can make us aware of the fact that power is not simply given, it must also be taken. Systematic civic infiltration of political processes is possible in a democracy, which may both serve to strengthen or weaken democratic government. When governance and administrative practice is fully transparent, and there is also constant effort on behalf of those in power—​whether appointed or elected officials—​to attract the public to the political and administrative tasks, civic inclusion is attempted. Lack of engagement should not be seen as a confirmation of the public’s lack of interest in policy-​making, but as a failure of the government to communicate with the public and to make engagement attractive and interesting.

Public engagement  181

Conclusion A critical conception of public engagement is at the same time practical: it speaks to the ways in which democratic society is composed not only of a public and its government but of many kinds of public and many layers of government. It also acknowledges the epistemic importance of different groups of actors in society, some more and some less powerful. There is no singular way in which political society can be carved up. In a democratic society, there are many ways to influence ideological direction as well as policy-​and decision-​making. A critical conception recognizing the various conflicts and paradoxes that characterize democratic governance does not place more value on one way rather than on another. A militant protest organization may never enter into any dialogue with government and stay on the margins of the political spectrum, yet occupy a position that makes it impossible for authorities to ignore. Meticulously organized deliberative forums may produce a clear expression of considered public views and yet have no effect at all on decision-​ making. In a democracy, power is given in various legitimate and procedural ways. Still, in the end, democratic authority may depend on whether and how power is taken, rather than on what the procedure is for giving it.

Notes 1 James Fishkin, When the People Speak. Deliberative Democracy and Public Consultation (Oxford:  Oxford University Press, 2009), 47–​53; Lawrence Lessig, They Don’t Represent Us (Boston: Dey St., 2019), 171–​221; Vilhjálmur Árnason, “Icelandic Politics in Light of Normative Models of Democracy,” Icelandic Review of Politics and Administration 14, no. 1 (2018): 54–​55. 2 See Richard J.  Arneson, “Defending the Purely Instrumental Account of Democratic Legitimacy,” Journal of Political Philosophy 11, no. 1 (2003): 122–​132. 3 The idea of liquid democracy is an example of what in my view can be characterized as over-​democratization. See Christian Blum and Christina Isabel Zuber, “Liquid Democracy:  Potentials, Problems, and Perspectives,” Journal of Political Philosophy 24, no. 2 (2016): 162–​182. 4 See, for example, David Estlund, Democratic Authority A Philosophical Framework (Princeton, NJ: Princeton University Press, 2008), 8–​9; Amy Gutmann and Peter Thompson, Why Deliberative Democracy? (Princeton, NJ:  Princeton University Press, 2004), 139–​140. 5 Thomas Christiano, The Constitution of Equality:  Democratic Authority and its Limits (Oxford: Oxford University Press, 2008), 197–​200. 6 In this paper, the executive refers to the government and its apparatus—​the public administration. But it is also important to keep in mind that the governmental bureaucracy, that is, the public administration, is not simply an instrument of government, but can also be an independent force crucial for the effectiveness of policies. 7 My account, therefore, is in direct opposition to some radical notions of democracy where “elite capture” is seen as the enemy and the goal of democratic rule to break elite power. See Michael Schulson and Samuel Bagg, “Give Political

182  Jón Ólafsson Power to Ordinary People,” Dissent Magazine, July 19, 2019, accessed 25 May 2020, www.dissentmagazine.org/​online_​articles/​give-​political-​power-​to-​ordinarypeople-​sortition. 8 The concept is misleading perhaps, but not trivial. I  use it to hint at the intellectualistic, pseudo-​scientific nature of Communist rule, which needed not only a certain official rhetoric but also a system of truths that should serve as a sufficient resource to explain every social and political development. 9 The locus classicus for this view is Francis Fukuyama, The End of History and the Last Man (New York: The Free Press, 1992). 10 Anthony Giddens, Beyond Left and Right (London: Polity Press, 1994), 17–​18. 11 The clearest statements of this view are of course frequently made by the Hungarian prime minister Viktor Orbán. See Pippa Norris and Ronald Inglehart, Cultural Backlash. Trump, Brexit, and Authoritarian Populism (Cambridge:  Cambridge University Press, 2019), 154. 12 See Donald Trump’s Twitter account, accessed May 12, 2020, https://​twitter.com/​ realDonaldTrump. 13 See a newspaper article by Putin’s former advisor and ideologue, Vladislav Surkov, where he attempts to outline such a conception: Владислав Сурков: “Долгое Государство Путина” Новая Газета, February 11, 2019. Accessed May 10, 2020, www. ng.ru/​ideas/​2019-​02-​11/​5_​7503_​surkov.html. 14 Chantal Mouffe, The Democratic Paradox (London: Verso, 2000), 6–​7. 15 Chantal Mouffe, Agonistics. Thinking the World Politically (London: Verso, 2013), 58–​59. 16 There are certainly cases where new democratic approaches have broken deadlocks, such as in the Irish citizen assemblies that led to important constitutional reform. See David M.  Farrell, Jane Suiter, and Clodagh Harris, “The Effects of Mixed Membership in a Deliberative Forum:  The Irish Constitutional Convention of 2012–​2014,” Political Studies 68, no. 1 (2020): 54–​73. 17 See, for example, Simone Chambers, “Deliberation and Mass Democracy,” in Deliberative Systems:  Deliberative Democracy at the Large Scale, eds. John Parkinson and Jane Mansbridge (Cambridge:  Cambridge University Press, 2012),  52–​71. 18 John Parkinson, “Democratizing Deliberative Systems,” in Deliberative Systems: Deliberative Democracy at the Large Scale, eds. John Parkinson and Jane Mansbridge (Cambridge: Cambridge University Press, 2012), 165. 19 For an excellent account of political participation in the final years of the Soviet Union, see Alexei Yurchak, Everything Was Forever, Until It Was No More: The Last Soviet Generation (Princeton, NJ: Princeton University Press, 2006). 20 See, for example, Cristina Lafont, Democracy without Shortcuts: A Participatory Conception of Deliberative Democracy (Oxford: Oxford University Press, 2019), 4. 21 For a discussion of this “paradox of presence,” see, for example, David Runciman, “The Paradox of Political Representation,” Journal of Political Philosophy 15, no. 1 (2007): 93–​114. 22 Jon Elster, Ulysses Unbound. Studies in Rationality, Precommitment, and Constraints (Cambridge:  Cambridge University Press, 2009). In a discussion of Akeel Bilgrami’s notion of fundamental commitments, Elster comes close to this point (see 58–​60). 23 Or not. The idea of privileged access to information and an intellectual environment making enlightened decision-​making possible is closer to the ideal of single

Public engagement  183 party leadership than to electoral democracy. See Michael Walzer, “Philosophy and Democracy,” in Debates in Contemporary Political Philosophy, eds. Derek Matravers and John Pike (London: Routledge, 2003), 372–​373. 24 The notion of democratic paradox has been used to denote different types of paradox which, although related, are distinct. For Chantal Mouffe, the democratic paradox appears in the inescapable conflict between liberal and democratic theory; see Mouffe, The Democratic Paradox, 1–​17; Richard Sakwa describes a democratic paradox in an analysis of Putin’s Russia as the conflict between the management and freedom of democracy; see Richard Sakwa, The Putin Paradox (London: I.B. Tauris, 2020). 25 Giorgio Agamben, State of Exception (Chicago and London:  University of Chicago Press, 2005), 1–2. 26 Hannah Arendt, Eichmann in Jerusalem (New York: The Viking Press, 1963), 252, 276–​277. Arendt lacked access to historical evidence which shows that Eichmann was far more implicated in the policy-​making itself than he admitted at the trial. 27 I am loosely referring to Rorty’s characterization of “liberal irony” in my argument here. See Richard Rorty, Contingency, Irony and Solidarity (Cambridge: Cambridge University Press, 1989), 73–​95. 28 Andre Bächtiger, John S.  Dryzek, Jane Mansbridge, and Mark Warren, “Deliberative Democracy:  An Introduction,” in The Oxford Handbook of Deliberative Democracy (Oxford: Oxford University Press 2018), 2. 29 Jürgen Habermas, Strukturwandel der Öffentlichkeit (Frankfurt: Suhrkamp, 2000), 340. 30 Hélène Landemore and Scott Page, “Deliberation and Disagreement:  Problem Solving, Prediction, and Positive Dissensus,” Politics, Philosophy & Economics 14, no. 3 (2015): 242. 31 Bo Rothstein, “The Three Worlds of Governance. Arguments for a Parsimonious Theory of Quality of Government,” The Quality of Government Institute, Working Paper Series 2013:12 (Gothenburg: University of Gothenburg, 2013), 9, accessed May 25, 2020, https://​thelivinglib.org/​the-​three-​worlds-​of-​governance-​ arguments-​for-​a-​parsimonious-​theory-​of-​quality-​of-​government/​; Ian Shapiro, “Enough of Deliberation. Politics is about Interests and Power,” in Essays on Democracy and Disagreement, ed. Stephen Macedo (New York & Oxford: Oxford University Press, 1999), 28–​38. 32 James Fishkin, Democracy when the People are Thinking. Revitalizing our Politics Through Public Deliberation (Oxford: Oxford University Press, 2018), 195–​199. 33 Fishkin, When the People Speak,  54–​55. 34 Ian Shapiro, “Collusion in Restraint of Democracy:  Against Political Deliberation,” Dædalus, the Journal of the American Academy of Arts & Sciences 146, no. 3 (2017): 77–​84. 35 David Van Reybrouck, Against Elections: The Case for Democracy (London: The Bodley Head, 2016). 36 John Parkinson and Jane Mansbridge, eds., Deliberative Systems:  Deliberative Democracy at the Large Scale (Cambridge: Cambridge University Press, 2012). 37 Philip Kitcher, Preludes to Pragmatism:  Toward a Reconstruction of Philosophy (New York: Oxford University Press, 2012). 38 Cristina Lafont, “Deliberation, Participation, and Democratic Legitimacy: Should Deliberative Mini-​publics Shape Public Policy?” Journal of Political Philosophy 23, no. 1 (2015): 40–​63.

184  Jón Ólafsson 39 Nadia Urbinati, Democracy Disfigured. Opinion, Truth and the People (Cambridge, MA: Harvard University Press, 2014). 40 Hélène Landemore, Democratic Reason. Politics, Collective Intelligence and the Rule of the Many (Princeton, NJ: Princeton University Press, 2013), 97–​104. 41 Many studies show that interests other than the public interests usually have far greater effect on public policy than public opinion, such as corporate interests or the interests of other institutions. See Lessig, They Don’t Represent Us. 42 Sigmund Freud, Das Unbehagen in der Kultur (Vienna:  Internationaler Psychoanalytischer Verlag, 1930). 43 For a broad discussion of the Icelandic constitutional reform process see, Valur Ingimundarson, Philippe Urfalino, and Irma Erlingsdóttir, eds., Iceland’s Financial Crisis. The Politics of Blame, Protest and Reconstruction (London and New York: Routledge, 2016), 185–​272. 44 For a general overview of the process, see “The Constitutional Council (2011),” Democratic Constitutional Design (DCD) website, accessed May 26, 2020, http://​ constitution.hi.is​. 45 See Jón Ólafsson, “When Experts and Crowd Disagree,” in Icelandic Constitutional Reform:  People, Processes, Politics (2010–​2017), eds. Ágúst Þór Árnason and Catherine Dupré (London: Routledge, 2020). 46 Thorvaldur Gylfason and Anne Meuwese, “Digital Tools and the Derailment of Iceland’s New Constitution,” in Digital Democracy in a Globalized World, eds. Corien Prins, Colette Cuijpers, Peter L.  Lindseth, Mônica Rosina (Cheltenham and Northampton, MA: Edward Elgar, 2017), 266–​267. 47 The attempt in London to fund the sounding of Big Ben’s bells illustrates this point nicely: The populist Brexit victory was very narrow and a great part of the British population unhappy with the decision to leave the EU. It is also impossible to assume that in future there will not be support for rejoining the EU. Yet the decision is frequently treated as “the people’s victory” by its supporters who know that once the UK has left the EU, return is too complicated a matter for the decision to be overturned. Therefore, even the prime minister saw it as a good idea to celebrate national unity at the moment of the formal withdrawal by sounding the bells of Big Ben. See “Brexit: Big Ben Bongs Fundraising Appeal Closes,” BBC, January 27, 2020, accessed March 1, 2020, www.bbc.com/​news/​uk-​politics-​51271287. 48 See Nadia Urbinati, “A Revolt against Intermediary Bodies,” Constellations 22, no. 4 (2015): 477–​486. 49 Nikolay Petrov, Maria Lipman, and Henry E. Hale, “Three Dilemmas of Hybrid Regime Governance:  Russia from Putin to Putin,” Post-​Soviet Affairs 30, no.  1 (2013): 4. 50 Ibid.,  7–​8. 51 Samuel A.  Greene and Graeme B.  Robertson, Putin v.  the People:  The Perilous Politics of a Divided Russia (New Haven, CT: Yale University Press, 2019), 193. 52 See Aleksandr Sherstobitov and Aleksandr Nikiforov. “Resource Exchange and Cooperation in Networks of Public Initiatives in Russian Cities (on the Example of Chelyabinsk, Ekaterinburg and Novosibirsk),” Среднерусский Вестник Общественных Наук 13, no. 2 (2018): 109. 53 Greene and Robertson, Putin v. the People, 127. 54 A frequent argument against deliberative democracy is the realist argument that says that its ideal is unattainable because people are not able to reach the

Public engagement  185 required stage of rational discourse (see, for example, Assaf Sharon, “Populism and Democracy: The Challenge for Deliberative Democracy,” European Journal of Philosophy 27, no. 2 (2018): 362). What I have in mind here is not a doubt about the ideal but rather doubts about the ways in which the ideal, even when attained, can influence decision-​making structures.

Bibliography Agamben, Giorgio. State of Exception. Chicago and London:  The University of Chicago Press, 2005. Arendt, Hannah. Eichmann in Jerusalem. New York: The Viking Press, 1963. Árnason, Vilhjálmur. “Icelandic Politics in Light of Normative Models of Democracy.” Icelandic Review of Politics and Administration 14, no. 1 (2018): 35–​59. Arneson, Richard J. “Defending the Purely Instrumental Account of Democratic Legitimacy.” Journal of Political Philosophy 11, no. 1, (2003): 122–​132. Bächtiger, Andre, John S. Dryzek, Jane Mansbridge, and Mark Warren. “Deliberative Democracy: An Introduction.” In The Oxford Handbook of Deliberative Democracy, 1–​36. Oxford: Oxford University Press 2018. Blum, Christian, and Christina Isabel Zuber. “Liquid Democracy: Potentials, Problems, and Perspectives.” Journal of Political Philosophy 24, no 2 (2016): 162–​182. “Brexit: Big Ben Bongs Fundraising Appeal Closes.” BBC, January 27, 2020. Accessed March 1, 2020. www.bbc.com/​news/​uk-​politics-​51271287. Chambers, Simone. “Deliberation and Mass Democracy.” In Deliberative Systems: Deliberative Democracy at the Large Scale, edited by John Parkinson and Jane Mansbridge. Cambridge: Cambridge University Press, 2012. Christiano, Thomas. The Constitution of Equality:  Democratic Authority and its Limits. Oxford: Oxford University Press, 2008. Elster, Jon. Ulysses Unbound. Studies in Rationality, Precommitment, and Constraints. Cambridge: Cambridge University Press, 2009. Estlund, David. Democratic Authority:  A Philosophical Framework. Princeton, NJ: Princeton University Press, 2008. Farrell, David M., Jane Suiter, and Clodagh Harris. “The Effects of Mixed Membership in a Deliberative Forum:  The Irish Constitutional Convention of 2012–​2014.” Political Studies 68, no. 1 (2020): 54–​73. Fishkin, James. Democracy when the People Are Thinking. Revitalizing our Politics Through Public Deliberation. Oxford: Oxford University Press, 2018. Fishkin, James. When the People Speak. Deliberative Democracy and Public Consultation. Oxford: Oxford University Press, 2009. Freud, Sigmund. Das Unbehagen in der Kultur. Vienna:  Internationaler Psychoanalytischer Verlag, 1930. Fukuyama, Francis. The End of History and the Last Man. New York: The Free Press, 1992. Giddens, Anthony. Beyond Left and Right. London: Polity Press, 1994. Greene, Samuel A., and Graeme B. Robertson. Putin v. the People: The Perilous Politics of a Divided Russia. New Haven, CT: Yale University Press, 2019. Gutmann, Amy, and Peter Thompson. Why Deliberative Democracy? Princeton, NJ: Princeton University Press, 2004.

186  Jón Ólafsson Gylfason, Thorvaldur, and Anne Meuwese. “Digital Tools and the Derailment of Iceland’s New Constitution.” In Digital Democracy in a Globalized World, edited by Corien Prins, Colette Cuijpers, Peter L. Lindseth, and Mônica Rosina, 249–​273. Cheltenham and Northampton, MA: Edward Elgar, 2017. Habermas, Jürgen. Strukturwandel der Öffentlichkeit. Frankfurt: Suhrkamp, 2000. Ingimundarson, Valur, Philippe Urfalino, and Irma Erlingsdóttir eds. Iceland’s Financial Crisis:  The Politics of Blame, Protest and Reconstruction. London and New York: Routledge, 2016. Kitcher, Philip. Preludes to Pragmatism: Toward a Reconstruction of Philosophy. New York: Oxford University Press, 2012. Lafont, Cristina. “Deliberation, Participation, and Democratic Legitimacy:  Should Deliberative Mini-​publics Shape Public Policy?” Journal of Political Philosophy 23, no. 1 (2015), 40–​63. Lafont, Cristina. Democracy without Shortcuts:  A Participatory Conception of Deliberative Democracy. Oxford: Oxford University Press, 2019. Landemore, Hélène. Democratic Reason. Politics, Collective Intelligence and the Rule of the Many. Princeton, NJ: Princeton University Press, 2013. Landemore, Hélène, and Scott Page. “Deliberation and Disagreement. Problem Solving, Prediction, and Positive Dissensus.” Politics, Philosophy & Economics 14, no. 3 (2015): 229–​254. Lessig, Lawrence. They Don’t Represent Us. Boston: Dey St., 2019. Mouffe, Chantal. Agonistics. Thinking the World Politically. London: Verso, 2013. Mouffe, Chantal. The Democratic Paradox. London: Verso, 2000. Norris, Pippa, and Ronald Inglehart. Cultural Backlash. Trump, Brexit, and Authoritarian Populism. Cambridge: Cambridge University Press, 2019. Ólafsson, Jón. “When Experts and Crowd Disagree.” In Icelandic Constitutional Reform: People, Processes, Politics (2010–​2017), edited by Ágúst Þór Árnason and Catherine Dupré. London: Routledge, 2020. Parkinson, John. “Democratizing Deliberative Systems.” In Deliberative Systems: Deliberative Democracy at the Large Scale, edited by John Parkinson and Jane Mansbridge, 151–​172. Cambridge: Cambridge University Press, 2012. Parkinson, John, and Jane Mansbridge, eds. Deliberative Systems:  Deliberative Democracy at the Large Scale. Cambridge: Cambridge University Press, 2012. Petrov, Nikolay, Maria Lipman, and Henry E. Hale. “Three Dilemmas of Hybrid Regime Governance:  Russia from Putin to Putin.” Post-​Soviet Affairs 30, no. 1 (2013): 1–​26. Rorty, Richard. Contingency, Irony and Solidarity. Cambridge: Cambridge University Press, 1989. Rothstein, Bo. “The Three Worlds of Governance. Arguments for a Parsimonious Theory of Quality of Government.” The Quality of Government Institute, Working Paper Series 2013:12. Gothenburg: University of Gothenburg, 2013. Accessed May 25, 2020. https://​thelivinglib.org/​the-​three-​worlds-​of-​governance-​arguments-​for-​a-​ parsimonious-​theory-​of-​quality-​of-​government/​. Runciman, David. “The Paradox of Political Representation.” Journal of Political Philosophy 15, no. 1 (2007): 93–​114. Sakwa, Richard. The Putin Paradox. London: I.B. Tauris, 2020. Schulson, Michael, and Samuel Bagg. “Give Political Power to Ordinary People.” Dissent Magazine, July 19, 2019. Accessed May 25, 2020. www.dissentmagazine. org/​online_​articles/​give-​political-​power-​to-​ordinary-​people-​sortition.

Public engagement  187 Shapiro, Ian. “Collusion in Restraint of Democracy: Against Political Deliberation.” Dædalus 146, no. 3 (2017): 77–​84. Shapiro, Ian. “Enough of Deliberation. Politics is about Interests and Power.” In Essays on Democracy and Disagreement, edited by Stephen Macedo, 28–​38. New York & Oxford: Oxford University Press, 1999. Sharon, Assaf. “Populism and Democracy:  The Challenge for Deliberative Democracy.” European Journal of Philosophy 27, no. 2 (2019): 359–​376. Sherstobitov, Aleksandr, and Aleksandr Nikiforov. “Resource Exchange and Cooperation in Networks of Public Initiatives in Russian Cities (on the Example of Chelyabinsk, Ekaterinburg and Novosibirsk).” Среднерусский Вестник Общественных Наук 13, no. 2 (2018): 99–​114. Urbinati, Nadia. Democracy Disfigured. Opinion, Truth and the People. Cambridge, MA: Harvard University Press, 2014. Urbinati, Nadia. “A Revolt against Intermediary Bodies.” Constellations 22, no. 4 (2015): 477–​486. Van Reybrouck, David. Against Elections:  The Case for Democracy. London:  The Bodley Head, 2016. Walzer, Michael. “Philosophy and Democracy.” In Debates in Contemporary Political Philosophy, edited by Derek Matravers and John Pike, 362–​379. London: Routledge, 2003. Yurchak, Alexei. Everything Was Forever, Until It Was No More:  The Last Soviet Generation. Princeton, NJ: Princeton University Press, 2006.

9  Corporatism and economic performance Juan Vicente Sola and Gylfi Zoega1

We are interested in understanding factors that impede growth in modern economies and make them vulnerable to economic crises. The economic performance of the developed economies has been disappointing in recent decades, and there have been many waves of financial crises. We attribute some of these developments to the system of corporatism whose origins go back more than a century. We tell the story of corporatism, describe its nature, find examples of corporatist institutions in modern economies, and show how they may hamper economic performance. After a period of rapid productivity growth and high employment in the decades following World War II, growth slowed down at the beginning of the 1970s in Europe and the United States and in the 1990s in Japan. The period of strong growth in Europe is sometimes called the Golden Age of economic growth. In Germany, the annual rate of growth of real GDP averaged 8.3% in the 1950s, 4.7% in the 1960s, and 3.7% in the 1970s, while comparable numbers for the United States were 3.7%, 4.5%, and 3%, respectively.2 The rate of growth of output in France and Italy also exceeded growth in the United States during this period. Meanwhile, unemployment was between zero and 1% in Europe until 1970, while it was in the range of 4–​6% in the United States. This picture changed after the mid-​1970s, and unemployment became much higher in Europe and the rate of growth lower than in the United States. While the good economic performance of continental Europe was construed by many at the time as a reflection of the quality of institutions in these countries—​hence the term Wirtschaftswunder for Germany—​more recent research has explained the high level of growth in terms of the productivity gap that existed between Europe and the United States at the end of World War II and the abundance of surplus labor in agriculture that industry could draw upon.3 Although institutions may have facilitated the productivity convergence, the main driver of growth was the adoption of technologies invented in the United States. The productivity gap allowed the European economies, followed by Japan and then China, to adopt U.S.  technological innovations that, in many cases, originated back in the 1920s. Meanwhile, growth in the United States stemmed from indigenous innovation taking place in American businesses.4

Corporatism and economic performance  189 In 1966, Richard Nelson and Edmund Phelps proposed a theoretical framework to describe the phenomenon wherein firms adopt the technology of leaders in each industry, with the ability to do so depending on the level of education and other institutions. Their contribution led to the formulation of a technology frontier along which leading firms innovate, while others gradually adopt their technologies and business practices.5 The same applies to countries: some countries are leaders in business and technology, while others follow. At the beginning of the twentieth century, the United States surged ahead of Europe due to its early exploitation of the great inventions of electricity and the internal combustion engine.6 This enabled Europe to grow rapidly in the decades after World War II. Then, when Europe had closed most of the gap with the United States, growth stalled in the 1970s, revealing the weakness of its institutions when it came to encouraging innovation. Instead, the institutions of European economies were more apt at helping firms adopt foreign technologies, a property lacking in economies in less developed parts of the world, such as in South America and Africa. According to Barry Eichengreen, the corporatist institutions of many European countries contributed to the catching up to the United States in the 1950s and the 1960s by helping labor and capital moderate wage growth to finance investment. We argue that these same institutions have the effect of reducing innovation and economic growth when the countries can no longer rely on imported technology.7 Robert Gordon describes how Europe had been falling behind the United States since 1995, in that hourly output grew more slowly, making European productivity fall from 94% of U.S. productivity to 85%.8 He explains this evolution mainly by differences between Europe and the United States in industries using Information and Communications Technologies (ICT), such as wholesale and retail trade. Gordon lays some of the blame for Europe’s lagging behind on corporatist institutions. He argues that policies that encourage competition and equity finance support economic dynamism, while corporatism reduces it, especially corporatist institutions designed to protect incumbent producers and inhibit new entry. Phelps, Bojilov, Hoon, and Zoega describe how differences in economic dynamism reflect differences in values and attitudes between continental Europe and the United States and the United Kingdom, and between the South and the North in Europe.9 Less value is put on initiative and independence in the workplace on the Continent, especially its southern part. There is also less support for market competition in Southern Europe. In a related paper, Guido Tabellini explained differences in output per capita across the regions of Europe in terms of a set of cultural variables.10 In particular, he found that high output per capita correlates positively with trust and tolerance of others and the degree to which people feel they have control over their own lives, and negatively with the extent to which parents try to teach their children to be obedient. Again, the positive attributes tend to be more prevalent in the North. These cultural differences may help explain differences in

190  Juan Vicente Sola and Gylfi Zoega institutions between European countries as well as differences in the economic effect of observationally similar or equivalent institutions. The period of weak growth has also had its share of crises, as is described by Charles Kindleberger and Robert S. Aliber.11 Four waves of financial crises have occurred. The first one took place in Mexico and South America in the early 1980s; the second in Japan and the Nordic countries at the beginning of the 1990s; the third in South East Asia in 1997; and the fourth in the United States and several European countries starting in 2008. During each wave, some countries were affected while others escaped. There have been recurrent crises in South America throughout this period. We explain here how corporatism can make countries vulnerable to financial crises.

Political economy of corporatism Corporatism arose at the end of the nineteenth century as an alternative societal mode of organizing and controlling the unpredictable forces of capitalism. Unlike communism, which called for abolishing capitalism altogether, corporatists proposed centralized direction and planning, giving the state great control over the contours of economic life. One of the instigators of corporatism, Ferdinand Tönnies, a founder of sociology as an academic discipline in Germany, feared the effects of capitalism on traditional communities. Rapid economic growth, innovation, and the transformation of industries had improved living standards but also led to periodic crises and recessions, inducing concerns for the future among the general population. According to Phelps, European elites, in the 1920s, became attracted to corporatism because it spoke to their need for unity and purpose in society.12 Intellectuals strived for economic order; farmers, artisans, and other interest groups sought protection; scientists and artists wanted state support; and religious groups sought the restoration of traditional communities and vocations. Corporatism represented a radical departure from the system of liberal constitutionalism founded on the separation of powers and checks and balances to guarantee limited government. In contrast to constitutionalism, it called for unbounded power in pursuit of the “will of the people.” It sought the enforced coordination of the economy by institutionalizing cooperation between government, labor unions, and employers’ associations, and, hence, also the distribution of income between capitalists and workers. It sought to eliminate strikes by pacifying labor unions; to protect businesses by imposing tariffs and modifying laws, regulations, and taxes; and to cement a hierarchical social structure. Corporatists aimed to enclose the economy within a tariff wall to promote the national interest in a zero-​sum world of hostile nations.13 At the zenith was the state, followed first by large centralized corporations and then by general confederations of labor unions. The system was intended to bring about the unity of the nation and incorporate all sectors of the economy—​ apart, of course, from “unborn” businesses with detrimental effects on economic growth.

Corporatism and economic performance  191 The paragon of the corporatist theory of the state was Carl Schmitt, who anchored corporatism in the full powers of the sovereign ruler to ensure the survival of the state. Schmitt and other corporatist writers such as Charles Maurras disdained parliamentary democracy and insisted that frequent states of emergency required centralizing all political decisions in a strong executive wielding absolute power. In The Crisis of Parliamentary Democracy, Schmitt articulated the corporatist attack on political parties that fragmented the unity of the people. Parliamentary democracy failed at the crucial task of politics: to create a homogeneous population by distinguishing between “friend” and “foe.” Defining the enemies who are against “us” makes it unnecessary to clarify ideas and political programs. “Us” in this case is the “people,” the “nation,” or a “race,” and the enemy could be “foreigners,” “oligarchs,” or other races. If one enemy is subjugated, another will appear. In Argentina, from the 1970s onwards, Peronists cast their struggle in terms of opposition to imperialism, that is, the people fighting against a foreign-​backed oligarchy. This vision has persisted, but nowadays “the people” is often synonymous with “the poor”—​whose impoverishment is a product of the corporatist policies themselves—​against the oligarchs, banks, and landowners. Following Schmitt, corporatists reject individualism and individual rationality in general; such concessions merely open the door to putting individual autonomy beyond the reach of the state. Instead, corporatism champions myths based on nationalism, the nobility of the family, the dignity of work, and a sentimental solidarity that unites all the members of the community. An early ruler of a corporatist fascist state, Benito Mussolini, called the communal values the “moral community,” while Juan Perón, who studied corporatism from Mussolini and introduced it to Argentina, called them the “organized community.”14 Individuals must embrace their allotted place in society. In the words of Perón himself, “No Peronist should feel more than what he is, nor less than what he should be. When a Peronist begins to feel more than what he is, he starts being an oligarch.”15 The corporatists emphasized loyalty, selflessness, patriotism, and dedication to a leader, all of which then legitimated the exercise of power. The main political festivity in Argentine Peronism is “Loyalty Day.” There is a cult for leaders who fought against foreign intervention, as opposed to politicians who accepted and negotiated with foreign powers.16 Corporatism is intimately bound up with states of emergency. Schmitt believed that industrial capitalism inevitably produced frequent social and economic crises accompanied by poverty, unemployment, dislocation, and accentuated inequalities. Respect for private property coupled with the diffusion of power meant that constitutional states were incapable of adequately managing such crises. Liberalism’s tendency to produce emergencies without the capability to overcome them presented its enemies with the opportunity to seize power and impose a new order through exceptional powers that the constitution could not contain. Corporatist writers proposed a strong government that could both fight capitalist business organizations

192  Juan Vicente Sola and Gylfi Zoega and parliamentary governments and face down the danger of socialism. This ability to create a new organized community where the state, business corporations, and trade unions could resolve their differences, agree on economic decisions, and avoid confrontations and competition could only be found under an authoritarian government. In practice, corporatist institutions have indeed tended to emerge in periods of crisis. Such a crisis could be an economic emergency, as was the case of hyperinflation in Schmitt’s Weimar Germany and in several Latin American countries in past decades, or a response to the real or imagined threat of immigration or the current coronavirus pandemic, to name a few examples. In addition, it could take the form of a belief in the importance of reestablishing the political order after economic and political convulsion, as in Italy after World War II. It could be the result of a societal support for strong leadership to stem the advance of socialism or communism, as was the case of Perón in Argentina, Getuilo Vargas in Brazil, and Salazar in Portugal. Once corporatism is established, the need for a declaration of emergency diminishes, since power is already concentrated in the executive. The new power of the business elite and the trade unions stands in the way of change, creating a path dependency that cannot easily be altered. In the case of European nations, European Union regulations managed to curb some of the most obvious corporatist features in Italy, France, and Spain, particularly when it came to economic competition. Italy was the first country to create a corporatist government system and economy under Mussolini. He tried to revitalize the Italian economy and recast existing institutions, values, and beliefs by organizing the Italian economy around 22 corporations (or corporazioni) or industries, each with an employers’ association and a labor union. The state had great powers over the corporations; it could veto wage agreements and influence the hiring and firing of workers. The National Socialists in Germany also set out, in the 1930s, to construct a corporatist system of the tripartite type—​capital, labor, and government. A few industrial groups were established, labor unions were regulated, and cartels were spread over nearly the entire economy and membership made compulsory. The state could intervene wherever and whenever it wished, and price and wage controls were imposed using emergency legislation.17 The Reich Economic Ministry could prevent the creation of new businesses and determine the production capacity of existing businesses. The government relaxed its grip on prices and wages somewhat in 1937, but industries were dependent on the state for military contracts and government subsidies. Although Mussolini’s Italy influenced Germany’s adoption of corporatist institutions, corporatism also had deeper roots in Germany, going back to the mercantile guilds. Other authoritarian leaders who established corporatist structures included Francisco Franco in Spain, Antonio Salazar in Portugal, Philippe Pétain in Vichy France, and Juan Perón in Argentina after World War II. All were influenced by Mussolini, and tried to create a different

Corporatism and economic performance  193 version of the economy and society where production was established in agreements with trade unions and business. The influence of Mussolini can also be found in Franklin D. Roosevelt’s New Deal. Roosevelt’s corporatist initiatives are visible in his National Industrial Recovery Act of 1933. The objective was to eliminate “cut-​throat” competition by bringing together industry, labor, and the government to set prices, wages, and weekly hours. In the style of Mussolini, the economy was to be broken up into industrial groupings, which were to establish “Codes of Fair Competition,” subject to the approval of the National Industrial Recovery Administration.18 In the end, the U.S. Supreme Court declared the law unconstitutional. However, it had some long-​term effects, such as the growth of unions and their power in the following decades.19 Ira Katznelson argues that Roosevelt’s attempts to save the economy and to defend democracy rested in large part on his willingness to collaborate with forces that did not share his democratic ideals.20 This includes his brief flirtation with quasi-​fascist economic planning in 1933. Another example is seeking the support of segregationist politicians in the American South to push through the New Deal legislative programs. Kirian Patel makes the case that the New Deal drew on the experience of many countries, including social-​democratic Sweden and provided a liberal alternative to authoritarian state building—​democracy could successfully make its way through crises.21 In the end, the United States under Roosevelt brought about the demise of the European fascist powers in World War II. We should not take the association with mid-​twentieth-​century fascism and authoritarianism too far, though, for it may obscure the corporatist elements present in modern-​day economies. There were also differences between regimes. Franco was not a populist but rather an authoritarian ruler who favored traditionalism and statism. Portugal’s Salazar was similar in this respect. In contrast, Perón was a populist, as was Mussolini. Salazar had been a professor of economics in Coimbra and he was a believer in a balanced budget. He created a corporatist constitution and ruled for 40 years. During his reign, Portugal remained a natural ally of Great Britain, even in the war; Salazar balanced the budget, but the economy stagnated. Franco came to power after a civil war claiming a million lives. From 1939 until 1956, he was a strict corporatist when it came to managing the economy, setting up barriers to imports and regulating the economy, which remained stagnant. After facing stern Western opposition after the end of World War II, which held up Spain’s UN membership until 1955, Franco became an anti-​Communist ally of the United States. He liberalized the economy on a Keynesian model, with variations, and the economy became more capitalistic. Perón was a popular leader who, unlike the rest, came to power through elections. He established a corporatist economy based on his idol, Mussolini. The result was economic stagnation and persistent inflation, with prices rising tenfold from 1946 to 1955. Utilities were nationalized and policy set in agreement with unions and employers.

194  Juan Vicente Sola and Gylfi Zoega

Corporatism in modern-​day economies Despite the failure of pure corporatist systems in Italy, Spain, or Portugal, many corporatist institutions survive in modern Europe, South America, and elsewhere. These involve the institutionalized cooperation among trade unions and employers’ associations and state agencies, usually without the leadership of a strong autocratic leader. In Europe, such cooperation in policy-​making, production decisions, and wage setting was thought to support gradual progress within stable low-​and medium-​technology industries.22 A modern corporatist economy has trade unions (which restrain wage growth); employment protection, unemployment benefits, and other social protections; large banks that provide patient capital by extending long-​term loans and subsidizing loss-​making enterprises; and industrial policy that extends sector-​and firm-​ specific aid to troubled firms and industries. The downside of this system is that it does not respond well to disruptive shocks because patient capital discriminates against new growth-​oriented industries and social protection discourages labor from moving toward expanding industries. In this way, corporatism inhibits the redistribution of resources to new industries, as is described by Alberto Alesina and Francesco Giavazzi.23 The post-​ war corporatist institutions in Europe have existed mostly without the strong ruler envisaged by Schmitt. While Italian fascism rested upon a strong centralized government, this was succeeded in post-​war Italy and Central Europe by what is called “the catholic corporatist doctrine,” which emphasized the role of intermediate bodies such as political parties, churches, cooperatives, unions, employers’ organizations, and so forth. This more benign corporatism espouses social harmony among the different classes that make up society, but without the strong ruler and the attendant states of emergency. Even so, the role of the state can be pervasive and have detrimental effects on the economy and society. Amintore Fanfani, later the Prime Minister of Italy, was one of the founders of Italy’s post-​war corporatist system. He studied at the Institute for Corporatist Studies at the University of Pisa in the 1930s, an institute set up by the fascist regime. Like Mussolini, he was committed to finding a “third way” between collectivist communism and the capitalist system. In the post-​war period, he became a prominent Christian Democratic politician, serving many times as prime minister between the 1950s and the 1970s. He was a leading thinker behind catholic corporatism and one of the fathers of the Italian constitution (1946–​48).24 Fanfani did not manage to control either his party or the country effectively, in stark contrast to Mussolini. Post-​war corporatism in Italy had a weak state, and the influence of Carl Schmitt had waned. The Italian state has remained extensive, however, through public consumption, investment, and transfers that intermediate over half of the country’s GDP–​–​and more than that in Southern Italy, where the private sector is small. The large public sector buys consensus by giving benefits and

Corporatism and economic performance  195 favors to different social groups. It is weak in the sense of being inefficient and not enjoying the trust of citizens, whose tax evasion puts Italy at the top of the OECD, along with Greece. Carl Schmitt may be missing, but the corrosive effects of corporatism remain.25 Germany and the Nordic countries also have corporatist institutions. The West German model was the “Social Market Economy,” advocated by Ludwig Erhard, Minister of Economic Affairs in the period of 1949–​ 1963 and Chancellor from 1963 to 1966. The aim was to raise wages and consumption and improve housing for the population–​–​a kind of people’s capitalism–​–​through low inflation, anti-​trust policies, which would strengthen the operation of the market, and a welfare state. In practice, the government, especially at the regional level, exerts strong influence on the management of large enterprises through its control of banks, whose representatives sit on the boards of businesses. Regional governments absorb financial losses by taking on liabilities for their banks and, in turn, use the public banking sector for industrial policy purposes. Markus Promberger finds corporatist institutions in the German labor market and German social policy and their institutions.26 There is the German model of industrial democracy, with union representation on the boards of companies (Mitbestimmung). The introduction of the short-​time working scheme (Kurzarbeit) after the financial crisis of 2008, initiated by Germany’s corporatist labor market institutions, reduced the effect of the crisis on unemployment by allowing workers to be employed part-​time, receiving partial unemployment benefits to complement their labor income. Barry Eichengreen attributes the Golden Age of economic growth to Germany’s corporatist institutions.27 According to his thesis, these institutions made possible a combination of wage moderation and high investment levels financed through retained earnings. The corporatist institutions disseminated information and monitored the compliance of economic interest groups when it came to wage setting and investment decisions. Mitbestimmung exemplifies one such corporatist institution. Other domestic institutions used to facilitate wage moderation were the welfare state and the pension system. At the international level, the European Community increased intra-​European trade, allowing each country to invest in the industries where it enjoys a comparative advantage. Eichengreen argues that this Golden Age ended in the early 1970s, when capital mobility increased, allowing firms to cheat on their side of the bargain by investing profits abroad. Alternatively, the period of strong growth ended when Germany and other Continental economies had closed the technology gap with the United States, resulting in slower productivity growth and investment. As was the case elsewhere, the corporatist institutions of Germany created sclerosis in the economy once the country had reached the technology frontier by stifling ground-​breaking innovation. Moreover, the centralized wage-​setting institutions in West Germany contributed to high wages and unemployment and weak growth in post-​unification East Germany. Instead of

196  Juan Vicente Sola and Gylfi Zoega producing trail-​blazing innovations, Germany has been more effective at producing incremental innovations that have given it a comparative advantage in the production of high-​quality manufactured goods.28 In the 1950s, 1960s, and 1970s, the Nordic countries relied on institutionalized cooperation between labor unions, employers’ associations, and the organs of the state to upgrade established industries such as forestry, metal and related engineering products, and automobile production. Sweden relied on patient capital to subsidize national icons, as policy-​makers sought to support established industries such as shipbuilding, steel, forestry, and textiles. In the 1980s, motor vehicles, forestry, and metals accounted for more than half of Swedish exports.29 Finland also had traditional industries and produced pulp, paper, and metal, mostly for export to the Soviet Union. Denmark, also reliant on low-​to medium-​level technology sectors, was strong in food processing and manufacturing industries such as shipbuilding. The setback suffered by traditional industries in the Nordic countries in the late 1970s and in the 1980s started these countries on a path of institutional reforms, taking them away from the corporatist system. Darius Ornston describes how Finland, Sweden, and Denmark acquired leading positions in biotechnology, software, and telecommunications by using corporatist cooperation among organized economic actors to invest in new supply-​side resources, including venture capital, skill formation, and research.30 As a result, these three Nordic countries developed innovation-​based industries. Ornston labels this “creative corporatism,” which clearly differs from the stifling corporatism that is the topic of this chapter. One can compare the transformation of the Swedish economy to that of China, in that Sweden maintained the institutions of corporatism but used them to spur growth and innovation, just as China maintained communism and used the institutions of state to promote capitalism. The difference between the economic performance of corporatist Italy and the less corporatist Germany and Scandinavia is striking. Italy differs from Northern Europe not only in the extent of its corporatist institutions but also in values and attitudes, as is described by Phelps and others.31 Similar institutions may generate different results due to differences in generalized trust of political authorities, the corresponding trustworthy behavior–​–​or lack of it–​–​of public officials, and opportunistic attitudes. To take an example, while Keynesian measures to expand demand may have a positive effect in the North, authorities can employ such policies to buy votes and to give benefits to one group or another in Italy, thereby feeding public debt. Governments may similarly expand the welfare state to benefit one group at the expense of another, and the authorities may create a banking system built on cronyism closely intertwined with political feudal lords.32 The difference between the economic performance of Germany’s East and West regions–​–​sharing the same institutions–​–​and Italy’s South and North is similarly a testimony to the role of values and attitudes.33

Corporatism and economic performance  197 Among the surviving corporatist institutions set up in the post-​war years at the international level are the UN Economic and Social Council (ECOSOC) and, even more so, the International Labor Organization (ILO), which follows the tripartite structure of large corporations, organized trade unions, and the state. These institutions are rooted in the belief that economic growth is obtained not through economic competition but through the acquiescence of economic and social organizations working together with governments.34 Employment protection is an example of a corporatist institution at the national level; it protects the interests of entrenched, typically older, workers at the expense of younger workers who are entering the workforce. In their work on the history of employment protection legislation,35 Mariya Aleksynska and Alexandra Schmidt describe how, in the last century, several European countries witnessed a shift from rather rudimentary employment protection schemes to comprehensive and unified systems that increased in complexity, particularly during the 1960s and 1970s. The first legislative efforts took place in several countries, mainly in the first two decades of the twentieth century. The legislative framework then remained relatively stable until the 1960s, when more stringent legislation was introduced. France was the first country to introduce several areas of regulation, involving unemployment insurance, fixed-​term contracts, and the enumeration of prohibited grounds for dismissals. Italy and Greece pioneered with generous notice periods and severance pay in the 1920s and 1930s, respectively, and were the first to regulate trial periods. In contrast, Portugal’s introduction of employment protection legislation and unemployment insurance schemes only started in the 1960s. Employment protection legislation has myriad economic consequences; some are deliberate, while others are not. They create a dual labor market: in one segment are older workers who enjoy job security and higher wages and in the other younger workers who receive lower wages and have less job security.36 Workers in the protected sector can demand higher wages without fearing dismissals and unemployment, and they can use their protected status to slow down or prevent innovation and efficiency-​enhancing organizational change. These workers are also reluctant to leave their industry because of the economic rent they enjoy due to employment protection. Firms respond by reducing hiring because they hesitate to employ workers who cannot be dismissed in the future or can be dismissed only at high cost. Therefore, legislation intended to protect employment has had the effect of reducing hiring in addition to reducing layoffs. Edward Lazear uses European data to show that severance pay requirements reduce average employment over the business cycle, while also reducing employment variability.37 There is another interesting corporatist labor market institution in modern-​day Italy. A worker who is laid off has access to what is called the Wage Supplementation Fund and can formally keep affiliation with the company instead of becoming unemployed, as would happen in other countries. This means that the employer cannot hire others without re-​employing those

198  Juan Vicente Sola and Gylfi Zoega who have been laid off. Originally, the scheme was the result of agreements between the main trade unions, employers’ associations, and government, making it effectively a typical corporatist labor market institution. Its aim was to protect workers, particularly the heavily unionized male breadwinners employed by medium and large industrial firms through a scheme operated according to an insurance principle. It was mandatory for the employers to pay a contribution so that the Fund could cover employees in case of temporary layoffs.38 In typical corporatist fashion, the scheme did not cover outsiders. First-​ job seekers (young people), women, employees of small firms, and workers in the informal economy, who in Italy constitute a very significant part of the labor force, had no coverage. Over time, the government extended the Fund to cover the employees of “zombie firms”–​–t​ hat is, companies unable to cover debt service costs from current profits–​–w ​ ith an unlimited extension of the period during which the employees could receive benefits (“extraordinary” wage supplementation). A  negative side of this scheme is that it helps zombie firms survive, thus reducing the movement of workers from declining to expanding industries. There are also bureaucratic obstacles in corporatist economies, such as the regulatory costs of forming new businesses and hiring workers, or “red tape,” which protects the interests of established firms enjoying monopoly or oligopoly profits. Regulation of financial markets may exceed what is required for prudential supervision, thereby ensuring access to capital for special interests and distorting capital markets to create financial repression, with the aim of channeling capital from the private sector to the government through inflation and negative real rates of interest. The inflation tax is often used: government spending is geared toward redistribution of income and takes up a large fraction of GDP, and the tax system is structured to extract resources from some industries for the benefit of others. Tariffs are imposed to protect domestic industries from foreign competition. In this way, the institutions of corporatism that remain have the intended purpose of protecting vested interests and dividing national income among the social partners. Economic growth, employment, and participation suffer, and in many cases, public debt and inflation run out of control.

Corporatism and the welfare state Corporatist institutions in modern economies should be distinguished from welfare state provisions. The two emerged from opposing political traditions. Corporatism provided a different path opposing both capitalism and socialism. Corporatism accepted the private property component of capitalism, but it limited economic competition and the market to establish an “organized community” where business corporations, trade unions, and the state could coordinate economic activity. In contrast, the welfare state was intended by socialist writers to be an alternative to the rigid doctrines of Marxism. The writings of the German Social Democrat Eduard Bernstein

Corporatism and economic performance  199 on the origins of Social Democracy and the Second International were very influential. Bernstein rejected large parts of Marxist theory, believing that socialism could be achieved through incremental legislative reforms in democratic societies. There are also differences when it comes to foreign trade. Corporatism sustained a closed economy with high tariffs, which would protect business against foreign competition; in return, these protected businesses would pay higher wages. The socialist movement and Bernstein were initially opposed to high tariffs, arguing that they raised the prices of goods and services. Britain provides a good example of the influence of left-​wing politics on the evolution of a welfare state not created by corporatist institutions. The Beveridge Report of 1942 contained proposals for reforms that were implemented by the post-​war government of Clement Attlee. The most notable of these was the establishment of the National Health Service. Another innovation was a system of national insurance financed by a contribution paid by workers into a state insurance fund, which paid for unemployment compensation and a state pension. The ideas put forth in the Beveridge report stemmed from the Fabian Society, founded in 1884, whose goal was to improve the condition of the public, particularly the least advantaged. Members made the case for a minimum wage and universal health care, both on equity grounds and to increase the efficiency of the labor force that now competed with the rising industrial powers of Germany and the United States.39 The work of the Fabians yielded some moderate results, such as improved health care coverage and unemployment insurance in key industries and a limited pension scheme.40 Corporatist influences on the welfare state are easier to spot in Germany and the Nordic countries. Nevertheless, the German welfare state preceded corporatist institutions in Imperial Germany during the reign of Otto von Bismarck. An objective was to stave off the challenge of socialist workers’ movements, which could pose an internal threat to the German Empire. The welfare state, financed partly by tariffs that shielded domestic industry, included social insurance systems to protect workers against the risk of sickness and injury and to provide for old age. Despite the dramatic changes in politics and geography since the days of Bismarck, the evolution of the welfare state has been continuous and gradual. Lutz Leisering recounts how, during World War I, foundations were laid for formal relations between trade unions and employers. The Weimar Republic expanded the welfare state by providing more generous unemployment insurance and health care. The National Socialists maintained the social insurance schemes during their reign, and the Federal Republic gradually expanded social security. The 1949 constitution introduced the welfare state as a principle of the Federal Republic, and the expansion of the welfare state may have helped enforce the corporatist system of wage moderation, robust investment, and rapid growth. When the Social Democrats came to power in 1966, they expanded the welfare state by introducing housing benefits, means-​tested grants for students, and active

200  Juan Vicente Sola and Gylfi Zoega labor market policies.41 Thus the German welfare system has origins in both corporatism and the doctrine of social democracy. There was also an overlap between many corporatist institutions and the welfare state in the Nordic countries. However, Denmark, Finland, Norway, and Sweden were–​–​and are–​–​all open economies with democratic governments, large labor unions, and an extensive welfare state. The roots of the Scandinavian welfare system go back to the first half of the twentieth century. Emigration to America made the population of Sweden decline, which prompted the sociologist and author Alva Myrdal to argue that women should be encouraged and enabled to combine work and motherhood. In collaboration with her husband, Gunnar Myrdal, she helped change the policies of the ruling Swedish Social Democrats, shifting the focus of the debate from women’s right to work to working women’s right to have children.42 In the 1930s, Sweden established a committee, as did Denmark, Finland, and Norway, with the aim of finding a way of preventing paid employment of women from reducing their fertility. The new policies included public programs in family planning, childcare, and division of labor within the family. In Sweden, many of the ideas proposed by the Myrdals were formalized by the Government Committee on Women’s Work, of which Alva Myrdal was secretary from 1935 to 1938. These measures intended to increase inclusion in the labor force, especially participation by women. Economic growth remained strong in Sweden from the late nineteenth century until about 1970. It was not until the 1960s and the 1970s that the scope of the welfare state increased significantly under Social Democratic Prime Ministers Tage Erlander and Olof Palme. While Sweden has been described as being corporatist at the time, it remained democratic, and the corporatist influence on the building of the welfare state is disputed. Assar Lindbeck has argued that Sweden’s large welfare state in the 1960s and 1970s was the result of an alliance between labor unions and the Social Democratic party, not the offspring of a corporatist society.43

Corporatism and economic performance The most important indicators of economic performance are productivity, unemployment, and labor force participation. A  high level of productivity indicates that wages are high in a wide range of jobs and that a broad range of careers is available to people. Low unemployment indicates that workers can easily find jobs; few employed people are quitting their jobs out of dissatisfaction, and few jobs are short-​lived. Another indicator is labor force participation. A high rate of participation implies that workers place a high value on existing jobs and the wages they pay. Moreover, a high participation rate and a low unemployment rate indicate that society is inclusive, meaning that a large share of the population has access to mainstream jobs.44 Why, then, is corporatism bad for economic performance? Did the German economy not perform well during the 1930s? Certainly, the German economy

Corporatism and economic performance  201 experienced growth in this period, but it had already begun by the time the National Socialists came to power in 1933. Moreover, it was bolstered through non-​economic objectives that included debt repudiation and massive rearmament. According to historian Adam Tooze, 67% of the growth of output between 1935 and 1938 was due to increased armament production.45 What makes corporatism suppress growth driven by innovation (in contrast to adopting foreign technologies) is that it emphasizes harmony at the expense of competition or innovation. It protects industries and firms from the consequences of competition and shields workers from dislocation. It creates inertia apart from occasional state-​sponsored initiatives. The road to harmony starts with agreements between large industries or business organizations, trade unions, and the government. Under corporatism, a limited number of monopolistic organizations representing fundamental interests engage in bargaining with state agencies over public policy. In exchange for favorable policies, the leaders of these organizations agree to undertake the implementation of policy through cooperation with the government. This curtails the development of new companies that offer new products to the market. Innovation is suppressed, initiatives go unrewarded, and unprofitable businesses and industries are kept alive through subsidies, limits on competition, and import restrictions. Recessions are no longer creative as described by Ricardo Caballero and Mohamad Hammour, in that they do not eliminate the weakest companies, and the recovering sectors following recessions are taxed to subsidize the losers.46 By compensating the losers and taxing firms that are growing, the corporatist system stifles productivity growth and innovation. Instead of promoting inclusive growth where productivity grows and living standards improve (but where some firms go under and others are created), the corporatist system has the character of an “extraction economy,” using the terminology of Daron Acemoglu and James Robinson.47 The objective is to split up national output among the social partners instead of increasing it by rewarding new firms and innovation at the expense of old declining firms and industries. In contrast, pluralism is a political system that adapts to the dispersion of knowledge in society, as is described by Friedrich Hayek, in an idealistic way. In his writings, such as the classic The Use of Knowledge in Society, the knowledge of a single individual is only a tiny fraction of the sum of knowledge held by all members of society. A  free-​market system allows individuals to act on their knowledge, guided by changes in market prices. In the Hayekian world, unfettered markets and political pluralism adapt more easily to the dispersion of knowledge in society than either central planning, proposed by Oscar Lange, or corporatism. It follows that since information is dispersed in bits of incomplete knowledge, it requires prudence and self-​limitation from legislators and regulators. Corporatism disregards the dispersion of knowledge, insisting on harmony and not competition within states.48 In contrast to any central planner–​–​such as Schmitt’s sovereign ruler or Lange’s socialist planner–​–​each Hayekian entrepreneur has insight and understanding of only

202  Juan Vicente Sola and Gylfi Zoega a small segment of the market economy, that is, the market where the entrepreneur sells his goods and services. It goes without saying that crises and recessions occur in free-​market societies. However, these inevitably lead to bankruptcies of many unprofitable businesses, leaving the economy able to recover and resume productivity growth. Not infrequently, the roots can be traced to corporatist elements, involving the tacit collaboration between supervisory agencies and banks, the government and private businesses, and businesses and bankers. Such elements were present in the recent financial crises in Iceland and Ireland, as well as in the Southern European countries. They are endemic in South America. In Iceland, the government and the bankers were closely aligned, as were the supervisor and the banks, all purporting to serve national interests.49 The size of the Icelandic banks’ balance sheets grew from being one and a half times the country’s GDP in 2003 to roughly eight times GDP at the end of 2007. No prudent financial supervisor would have allowed this to happen, sensing the dangers of rapid credit growth for the quality of the banks’ loan books. Yet in Iceland, as in Ireland, the supervisor was passive, even supportive of the expanding banking sector. The government played a supporting role for the banks, and when the currency started to fall in 2007, the reaction was to place blame on the foreign hedge funds that were attacking the country and its people; it was “us against them.” In the following years, foreign vulture funds were demonized by many as threatening the economic future of the nation. The story of Ireland’s financial crash is similar, except that the European Central Bank rescued the Irish banking system, leaving Ireland with more debt. Economic dynamism consists of innovativeness coupled with a financial sector that can choose the innovations, firms, and investments to support. There is also the supporting role played by the state, which created both the Internet and GPS, to name but two examples.50 Innovation and access to finance created such giants as FedEx, Intel, Apple, Microsoft, and Google.51 Such dynamism lifts economic performance in all its main dimensions: participation, job availability, and productivity. Dynamism requires a banking system that selects the most promising investment ideas and new businesses and does not allocate capital based on the priorities of a corporatist government. One way to measure dynamism is through the value of the stock market in relation to national output. Where the stock market assigns a higher value, it indicates that national productivity is expected to increase in the future. Market capitalization and dynamism depend on a multitude of institutions, including an organized stock exchange, company law, bankruptcy provisions, corporate governance, all spurring corporate performance, and schools and universities preparing the population for business life. There are also other important institutions. These include the rule of law and the provision of enough personal and national security to safeguard earnings, savings, and investments. However, these institutions are not enough to generate dynamism. Many other economic institutions matter as well, and some have a

Corporatism and economic performance  203 detrimental effect on dynamism. Corporatist institutions that grant company employees, labor unions, communities, and other interest groups veto power to block or limit entrepreneurial ventures and shifts in corporate operations may choke off valuable innovation. We can list several corporatist institutions that hamper dynamism. One is the employment protection legislation mentioned above, which effectively makes it more difficult for employers to terminate employment relationships. One consequence is that firms hesitate to hire new workers during economic expansions for fear of being unable to terminate the relationships in a future recession. Another consequence is reduced labor mobility between declining and expanding industries. In a corporatist economy, the government may tax the expanding industry and subsidize the declining industry, further reducing productivity growth. Any entrepreneur or innovator would have to adjust to such a system that aims at compensating the losers and keeping unprofitable industries alive, while not supporting new and expanding firms. Another institution that impedes growth is red tape, which consists of the required licenses obstructing or discouraging the establishment of new firms and new projects, as measured by the OECD index of red tape. This has a similar effect of reducing job creation and the establishment of new businesses, thereby hindering productivity growth. Large unions that interact with employer associations may also act to protect jobs in declining industries. The interaction between unions and employer associations can have the effect of protecting the interests of established firms and their workers, while neglecting or explicitly working against the interests of would-​be entrepreneurs and business ventures that may turn out more profitable than existing businesses.52 What do the data say about these relationships? Phelps and Zoega used a sample of OECD countries to show that the ratio of market capitalization to GDP is inversely related to employment protection and to the coordination among unions and employers in the labor market, while it is positively related to the share of the labor force with university-​level education.53 Furthermore, market capitalization is negatively related to the rate of unemployment and positively related to productivity growth and labor force participation. We use the Heritage index of economic freedom to measure how corporatist a country’s institutions are. The index is an aggregate measure of the following institutional variables:  the rule of law (property rights, judicial effectiveness, and government integrity), government size (tax burden, government spending, and fiscal health), regulatory efficiency (business freedom, labor freedom, and price stability), and open markets (trade freedom, investment freedom, and financial freedom). A low index value indicates extensive corporatist intervention in the economy, while a high value indicates a free market economy. A corporatist economy—​or an economy with some corporatist features—​ would distinguish itself from more free-​market economies along many of these dimensions. A  higher number always indicates less regulation, lower taxes, lower government spending, fiscal surpluses, low inflation, free trade,

204  Juan Vicente Sola and Gylfi Zoega uninhibited investment, and free markets. We have to emphasize at this point that while some regulations are needed to address market failures—​such as prudential regulations in financial markets and consumer protection—​others, or the more corporatist ones, are created to benefit one industry at the expense of others, or labor at the expense of capital, and so forth. The distinction is between rules that are intended to ensure the smooth operation of the capitalist economy, on the one hand, and the corporatist rules and regulations that involve dividing the value of national output between social groups, industries, or unions, on the other. The latter are detrimental to economic performance. The Nordic welfare states of Denmark, Finland, Norway, and Sweden are no longer corporatist in the way that term is used here. They have a high value on the Heritage index scale for business freedom and financial freedom, as well as for judicial effectiveness, property rights, and government integrity. What reduces their overall value is mainly high taxes and government spending. Figure 9.1 shows a downward-​sloping relationship between the Heritage index of economic freedom (www.heritage.org) and a measure of employment

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Figure 9.1 The Heritage index of economic freedom and employment protection Countries:  Australia (aus), Austria (aut), Belgium (bel), Canada (can), Denmark (den), Finland (fin), France (fra), Germany (ger), Greece (gre), Ireland (ire), Italy (ita), Netherlands (net), New Zealand (nze), Norway (nor), Portugal (por), Spain (spa), Sweden (swe), Switzerland (swi), U.K. (uk), and U.S. (usa). Source: OECD and Heritage Foundation. The graph shows the Heritage index in 2020 and a measure of employment protection in 2013.

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Figure 9.2 The Heritage index and unemployment Countries:  Australia (aus), Austria (aut), Belgium (bel), Canada (can), Denmark (den), Finland (fin), France (fra), Germany (ger), Greece (gre), Ireland (ire), Italy (ita), Netherlands (net), New Zealand (nze), Norway (nor), Portugal (por), Spain (spa), Sweden (swe), Switzerland (swi), U.K. (uk), and U.S. (usa). Source:  OECD and Heritage Foundation. The index is measured in 2020 and unemployment in 2019.

protection taken from the OECD. The negative slope says that the greater the economic freedom is, the less stringent employment protection is. The most corporatist economies are Greece, Italy, Spain, Portugal, France, and Belgium, while the least corporatist economies belong to the English-​speaking countries of the United States, the United Kingdom, Australia, Canada, and New Zealand, as well as Switzerland. Denmark, Sweden, Finland, and Norway take an intermediate position, as do Germany and Austria. We use the Heritage index as a proxy for corporatist institutions in modern economies: the higher the index, the less corporatist the economy. Let us now consider outcomes. Figure 9.2 shows the relationship between the Heritage index and unemployment in 2018. There is a clear negative relationship between the variables, so that the most corporatist economies—​ those with the lowest Heritage score—​have higher unemployment. The poor economic performance of these economies is a testament to the negative effects of the corporatist institutions that remain in the countries concerned. Figure 9.3 shows the relationship between labor force participation in 2018

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Figure 9.3 The Heritage index and labor force participation Countries:  Australia (aus), Austria (aut), Belgium (bel), Canada (can), Denmark (den), Finland (fin), France (fra), Germany (ger), Greece (gre), Ireland (ire), Italy (ita), Netherlands (net), New Zealand (nze), Norway (nor), Portugal (por), Spain (spa), Sweden (swe), Switzerland (swi), U.K. (uk), and U.S. (usa). Source: OECD and Heritage Foundation. The index is measured in 2020 and participation in 2019.

and the Heritage index. There is a clear positive relationship, which indicates that participation is lower in the more corporatist economies. The graphs indicate that the corporatist economies of Greece, Italy, Spain, and Portugal, and to some extent, France and Belgium, perform worse when economic performance is measured by unemployment and labor force participation.

Corporatism and financial crises There have been many financial crises since the fall of the Bretton Woods system in 1971. The sequence of events tends to be similar from one crisis to another. One thing is less than clear, though:  what determines whether a country suffers an international crisis, since in each financial crisis some countries are spared while others are affected? While macroeconomic policy mistakes and mismanagement occur in countries with different institutional setups, as the 2008 crisis in the United States shows, there are indications that corporatism is conducive to such crises. It is in the relations and interactions between the social partners—​banks, large businesses, and the government—​ where fragilities emerge in the corporatist system. The fragility is caused by

Corporatism and economic performance  207 a lack of a viable opposition in politics; the merging of those who decide laws and supervise the economy, on the one hand, and businesses that are supposed to follow them, on the other hand; and the protection of managers and businesses from facing the consequences of mistakes through bankruptcies. By eliminating the penalties for bankruptcies or failures and mistakes, corporatism not only reduces growth but also increases the probability of crises: a bank crisis, a debt crisis, and a balance of payments crisis. The repeated crises occurring in the economies of South America show how corporatist institutions can generate recurrent financial crises, Argentina being the prime example. Capital flows are instrumental in this process.54 Capital flowing from the trade surplus countries makes the currencies of other countries appreciate and causes credit to expand domestically, making the price of stocks and houses rise. This was the case in Iceland before the 2008 crash of its banking system, to take a very small economy as an example, and in the United States, to take a very large one. The combined effect of the currency appreciation and rising asset prices in the capital inflow countries is to increase consumption and domestic demand, creating trade deficits. This would not be a problem if capital were used to finance profitable investments that generated enough income to service external debt. Unfortunately, this is often not the case. The recent capital inflows into Spain fueled a housing boom that made the country use as much cement per year as the rest of Western Europe combined, and house prices rose at an unsustainable rate. There was also a housing price bubble and a construction boom in Ireland. The inflows into Iceland enabled the owners of its banks to finance the purchase of a vast amount of foreign retail outlets, mostly in the United Kingdom and Denmark, as well as the buying up of most local non-​financial companies. In the process, stock prices rose tenfold and a massive trade deficit emerged. In Greece, the government borrowed to finance increased public employment where nepotism and party affiliation played an important role. One key puzzle remains, however: some countries are affected by capital inflows during each of these episodes, while others are not. Why did Southern European countries, Ireland, and Iceland suffer most in the recent crisis, rather than Scandinavia, Canada, or Japan? Moreover, why have countries in South America suffered one crisis after another in recent decades? One answer to this question might be that institutions differ between countries so that in some countries individuals—​bank managers, politicians, business owners—​ can profit from leveraging banks, businesses, or public institutions and, in some cases, profit from bankruptcies, as is described by George Akerlof and Paul Romer, while in other countries it is more difficult to do so. It is here that corporatism plays a role by diluting the separation between bankers and supervisors, business leaders and politicians, and bankers and borrowers.55 Most importantly, corporatism increases the probability of financial crises by diluting the consequences of the crises for those responsible by spreading the losses over the economy at large.

208  Juan Vicente Sola and Gylfi Zoega An important way of lubricating the corporatist system is to have the government create money to finance its expenditures, as well as transfers and subsidies to favored sectors. This results in inflation, which is a tax on the population. Historically, hyperinflation has been common in the corporatist economies in South America. One can say the same thing about the countries of Southern Europe, where inflation was rampant before they joined the eurozone. In Iceland until about 1990, the labor market used inflation to align negotiated wages with real wages businesses could pay. The central bank financed part of government spending with money creation. Money creation is used in the corporatist system to please the social partners, allow the government to finance subsidies and transfers, and ensure the smooth running of the economic system. While the adoption of the euro has eliminated high inflation from Southern Europe, the institutions of corporatism remain. These same institutions still require lubrication, which now comes in the form of debt accumulation. Figure  9.4 shows a positive relationship between average inflation in the 1970s and 1980s and the government debt-​to-​GDP ratio in 2010, before the start of the eurozone crisis. We can explain the relationship by the presence of institutions that contributed both to high inflation in the 1970s and to debt 160

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Figure 9.4 Central government debt and average inflation in the 1970s and 1980s Countries:  Australia (aus), Austria (aut), Belgium (bel), Canada (can), Denmark (den), Finland (fin), France (fra), Germany (ger), Greece (gre), Ireland (ire), Italy (ita), Netherlands (net), New Zealand (nze), Norway (nor), Portugal (por), Spain (spa), Sweden (swe), Switzerland (swi), U.K. (uk), and U.S. (usa). Source:  OECD. Public debt is central government debt in 2010 as a ratio to GDP. Average inflation is the average of the CPI inflation from 1970 to 1989.

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Figure 9.5 Average inflation and the Heritage index Countries:  Australia (aus), Austria (aut), Belgium (bel), Canada (can), Denmark (den), Finland (fin), France (fra), Germany (ger), Greece (gre), Ireland (ire), Italy (ita), Netherlands (net), New Zealand (nze), Norway (nor), Portugal (por), Spain (spa), Sweden (swe), Switzerland (swi), U.K. (uk), and U.S. (usa). Source: OECD. The index is measured in 2020 and inflation from 1970 to 1989.

accumulation after the countries concerned joined the eurozone. In this way, corporatist institutions may have contributed to the sovereign debt crises in Southern Europe in the first decade of this century. Figures 9.5 and 9.6 show how both inflation and public debt are related to the Heritage index. The lower the value on the index–​–​that is, the more corporatist the economy–​–​the higher average inflation was in the 1970s and 1980s and the higher the level of public debt was at the beginning of the debt crisis in 2010. We have found that the vestiges of corporatist institutions in modern economies are associated with inferior economic performance as measured by inflation, debt accumulation, unemployment, and labor force participation. Moreover, these institutions are quite prevalent in countries such as Greece, Italy, Portugal, and Spain, as well as Belgium and France.

Conclusions The corporatist institutions of modern-​day economies impede economic performance as measured by unemployment, labor force participation, growth,

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Figure 9.6 Central government debt and the Heritage index Countries:  Australia (aus), Austria (aut), Belgium (bel), Canada (can), Denmark (den), Finland (fin), France (fra), Germany (ger), Greece (gre), Ireland (ire), Italy (ita), Netherlands (net), New Zealand (nze), Norway (nor), Portugal (por), Spain (spa), Sweden (swe), Switzerland (swi), U.K. (uk), and U.S. (usa). Source: OECD. Public debt is central government debt in 2010 as a ratio to GDP, and the index is measured in 2020.

inflation, and government debt. One lesson we can draw is that the institutions, laws, and regulations that underpin labor, goods, and financial markets in capitalist societies should aim at enhancing the performance of the economy by addressing market failures, asymmetric information, irrationalities, and herd behavior. They should not, however, act to guide the direction the economy is taking—​what is produced and how it is produced. Another lesson is that laws and regulations should encourage hard-​working and ambitious individuals to spend their lives innovating and creating value instead of engaging in rent-​ seeking that involves reshuffling income and wealth between people. Such rent-​seeking does occur in corporatist economies but is not confined to them. The late William Baumol made the point that every nation has its share of hard-​working, entrepreneurial, and ambitious individuals, but that how they spend their lives depends on the institutions–​–​and, we can add, the values of the country where they are born.56 Such an individual born into the corporatist economies of Mussolini and Perón might not end up spending his or her life in a productive way, and the same applies to a lesser extent to modern-​ day corporatist economies. An ambitious individual might end up in the

Corporatism and economic performance  211 bureaucracy of the Parisian governing class or a government job in Greece, while in the less corporatist economies of the United States, Britain, and Scandinavia–​–​countries where success is better rewarded and the economy eliminates weak firms and industries to a greater extent–​–​the person might end up spending his working life in a more productive manner. In spite of its inefficiencies and perverse incentives, it is difficult to unwind the corporatist institutional setup because of the multitude of vested interests involving individuals who benefit personally from these institutions, even though the country may be worse off. As the Icelandic economist Thráinn Eggertsson has argued, the economics profession can describe what an ideal economic system would look like; the problem is how to improve the systems that exist and prevail because of the narrow interests of individuals and interest groups who benefit from them.57

Notes 1 We are grateful to Luigi Bonatti, University of Trento, and Thráinn Eggertsson, University of Iceland, for valuable comments. 2 Source: Penn World Tables, accessed May 25, 2020, www.rug.nl/​ggdc/​blog/​. 3 On surplus labor, see Peter Temin, “The Golden Age of European Growth Reconsidered,” European Review of Economic History 6 (2002): 3–​22. 4 See Riccardo Crescenzi, Andrés Rodríguez-​ Pose, and Michael Storper, “The Territorial Dynamics of Innovation:  A Europe-​ United States Comparative Analysis,” Journal of Economic Geography 7, no. 6 (2007): 673–​709. These authors discuss the possible reasons for why the United States has been able to gain and maintain world leadership in innovation and technology while Europe lags. They find that in addition to differences in R&D investment and human capital, the United States benefits from a higher mobility of capital, population, and knowledge within its borders that contributes to the agglomeration of research activity in specific areas of the country such as Silicon Valley. In Europe, institutional and cultural factors prevent innovative agents from maximizing the benefits from external economies. 5 For a more recent contribution, see Jérome Vandenbussche, Philippe Aghion, and Costas Meghir, “Growth, Distance to Frontier and Composition of Human Capital,” Journal of Economic Growth 11 (2006): 97–​127. 6 Robert J.  Gordon, “Two Centuries of Economic Growth:  Europe Chasing the American Frontier,” NBER Working Paper No. 10662 (2004), accessed May 25, 2020, www.nber.org/​papers/​w10662. 7 Barry Eichengreen, “Institutions and Economic Growth:  Europe after World War II,” CPR Discussion Paper No 973 (1994), accessed May 25, 2020, https://​ econpapers.repec.org/​paper/​cprceprdp/​973.htm. 8 Robert J.  Gordon, “Why was Europe Left at the Station When America’s Productivity Locomotive Departed?” NBER Working Paper No. 10661 (2004), accessed May 25, 2020, www.nber.org/​papers/​w10661. 9 Edmund S. Phelps, Raicho Bojilov, Hian Teck Hoon, and Gylfi Zoega, Dynamism: The Values that Drive Innovation, Job Satisfaction, and Economic Growth (Cambridge, MA: Harvard University Press, 2020).

212  Juan Vicente Sola and Gylfi Zoega 10 Guido Tabellini, “Culture and Institutions:  Economic Development in the Regions of Europe,” Journal of the European Economic Association 8, no. 4 (2010): 677–​716. 11 Charles P.  Kindleberger and Robert Z.  Aliber, Manias, Panics, and Crashes:  A History of Financial Crises, 7th ed. (London: Palgrave-​Macmillan, 2015). 12 Edmund S.  Phelps, Mass Flourishing:  How Grassroots Innovation Created Jobs, Challenge, and Change (Princeton, NJ: Princeton University Press, 2013). 13 See Carl Schmitt, Land and Sea:  A World Historical Meditation, trans. Samuel G. Zeitlin (Candor, NY: Telos Press Publishing, 2015). 14 In the same Congress of Philosophy, an important theorist of Fascism, Ugo Spirito was present, although it was several years after the war. Source:  Ugo Spirito, “Individualita e Colletivita,” presented at the conference:  Congreso Nacional de Filosofia, Mendoza Argentina, March 30–​April 9, 1949 (Buenos Aires: Universidad Nacional de Cuyo, 1950). 15 Perón established a shortlist of commandments called the “Twenty Truths of Peronist Justice,” Among them were the following: 7) No Peronist should feel more than he is or less than he should be. When a Peronist begins to feel more than he is, he begins to become an oligarch. 15) As a political doctrine, Justice balances the right of the individual with that of the community. 19) We constitute a centralized government, an organized state, and a free people. Juan Domingo Perón, “20 Verdades del Justicialismo Peronista,” Mundo Peronista 1 (Buenos Aires:  Editorial Haynes, July 15,1951). There are many printings of these commandments; we chose the official version by the party’s magazine. 16 Like corporatism, populism involves a charismatic leader who sets the course and defines and articulates what the interests of the people are (see, for example, Cas Mudde, “Europe’s Populist Surge:  A Long Time in the Making,” Foreign Affairs 95, no. 6 (2016): 25–​30; and Cas Mudde and Cristóbal Rovira Kaltwesser, Populism (Oxford: Oxford University Press, 2017). Moreover, the populists divide society into “the people” and the “other” or “us against them,” where “they” define who “we” are. In addition, populism involves a rejection of the “elite” that has governed society in politics, bureaucracies, media, banks, and universities and a rejection of international organizations and collaboration. Thus, the state becomes the champion of the people against others—​be they nations or ethnic or religious groups—​and a leader decides what is in the best interests of the people. 17 A more recent example of a corporatist emergency intervention is Richard Nixon’s imposition of wage and price controls in 1971. See, for example, Gene Healy, “Remembering Nixon’s Wage and Price Controls,” DC Examiner, August 16, 2011, accessed May 25, 2020, www.cato.org/​publications/​commentary/​remembering-​ nixons-​wage-​price-​controls; and Robert J. Gordon, “The Response of Wages and Prices to the First Two Years of Controls,” Brookings Papers on Economic Activity 1973, no. 3 (1973): 765–​779. 18 See James Q.  Whitman, “Of Corporatism, Fascism, and the First New Deal,” American Journal of Comparative Law 39, no. 4 (1991): 747–​778. A 1934 hit tune by Cole Porter even included the line “You’re the top—​you’re Muss-​o-​li-​ni.” Listen to Jeanne Aubert and Jack Whiting: www.youtube.com/​watch?v=x6S-​7Bd5k_​I. In

Corporatism and economic performance  213 a reflection of changing attitudes following Mussolini’s military incursion into Ethiopia in 1935, the line mentioning Mussolini was subsequently deleted. 19 Michael Wachter argues that unions were successful in the 1930s because of the corporatist policies of the New Deal that made the goals of labor law consistent with the goals of corporate law and antitrust. See Michael L.  Wachter, “Labor Unions: A Corporatist Institution in a Competitive World,” Faculty Scholarship at Penn Law 95 (2007), accessed May 25, 2020, https://​scholarship.law.upenn.edu/​ faculty_​scholarship/​95. 20 Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York and London: W. W. Norton, 2013). 21 Kirian Klaus Patel, The New Deal: A Global History (Princeton, NJ and Oxford: Princeton University Press, 2016). 22 See Barry Eichengreen, The European Economy since 1945: Coordinated Capitalism and Beyond (Princeton, NJ: Princeton University Press, 2006). 23 Alberto Alesina and Francesco Giavazzi, The Future of Europe (Cambridge, MA: MIT Press, 2006). 24 Ironically, Article 1 of the constitution states that “Italy is a democratic republic founded on labor,” when, in fact, Italy has one of the lowest employment rates among industrialist countries, mainly due to its corporatist institutions. 25 See Gianluigi Pelloni and Marco Savioli, “Why is Italy doing so Badly?” The Rimini Center for Economic Analysis, Working Paper PR 15-​01 (2015), accessed May 25, 2020, https://​ideas.repec.org/​p/​rim/​rimpre/​15-​01.html. 26 See Markus Promberger, “Corporatism: Opportunity or Obstacle for the Economy and Democracy?” IAB-​Forum 1 (2013): 82–​97, http://​doku.iab.de/​forum/​englisch/​ Forum1_​2013_​Promberger_​en.pdf. 27 See Eichengreen, “Institutions and Economic Growth.” 28 See Oliver Som, Innovation without R&D:  Heterogeneous Innovation Patterns of Non-​R&D-​Performing Firms in the German Manufacturing Industry (Wiesbaden: Springer Gabler Verlag, 2012). 29 David Ornston, “Creative Corporatism:  The Politics of High-​ Technology Competition in Nordic Europe,” Comparative Political Studies 46, no.  6 (2012): 702–​729. 30 Ornston, “Creative Corporatism.” 31 Phelps, Mass Flourishing. 32 We are grateful to Luigi Bonatti, University of Trento, for making this point. 33 See Wendy Carlin, “Good Institutions Are Not Enough:  Ongoing Challenges of East German Development,” CESifo Working Paper Series No. 3204 (2010), accessed May 25, 2020, https://​ideas.repec.org/​p/​ces/​ceswps/​_​3204.html. 34 See United National Economic and Social Council, “About ECOSOC,” accessed, May 25, 2020, www.un.org/​en/​ecosoc/​about/​. 35 Mariya Aleksynska and Alexandra Schmidt, “A Chronology of Employment Protection Legislation in some Selected European Countries,” Conditions of Work and Employment Series 53, International Labor Office (2014), accessed May 25, 2020, www.ilo.org/​wcmsp5/​groups/​public/​-​-​-​ed_​protect/​-​-​-​protrav/​-​-​-​travail/​ documents/​publication/​wcms_​324647.pdf. 36 See Gilles Saint Paul, Dual Labour Markets:  A Macroeconomic Perspective (London and Cambridge, MA: The MIT Press, 1996). 37 Edward P. Lazear, “Job Security Provisions and Employment,” Quarterly Journal of Economics 105, no. 3 (1990): 699–​726; Samuel Bentolila and Giuseppe Bertola

214  Juan Vicente Sola and Gylfi Zoega justify the existence of employment protection legislation by Keynesian coordination failures, whereby firing costs improve workers’ welfare due to an aggregate demand externality. In effect, the firings costs reduce the volatility of the business cycle, thus reducing employment as well. See Bentolila and Bertola, “Firing Costs and Labour Demand: How Bad is Eurosclerosis?” Review of Economic Studies 57 (1990): 381–​340. 38 The Fund was supposed to pay 80% of the regular wage and the firm in crisis nothing. From the beginning, the government subsidized the Fund. 39 The Fabians Beatrice and Sidney Webb, Graham Walla, and George Bernard Shaw founded the London School of Economics in 1895. Fabians were also involved in the founding of the Labour Party in 1900. 40 Welfare programs did not begin with the Fabian Society. There were earlier attempts, including the Old Age Pensions Act 1908, pushed through by David Lloyd George, the Chancellor of the Exchequer, and the National Insurance Act 1911. See Barry Eichengreen, The Populist Temptation: Economic Grievance and Political Reaction in the Modern Era (Oxford: Oxford University Press, 2018). 41 For the history of the German welfare state, see Lutz Leisering, “Germany—​Reform from Within,” in International Social Policy:  Welfare Regimes in the Developed World, eds. Pete Alcock and Gary Craig (London: Palgrave, 2001), 161–​182. 42 Alva Myrdal and Gunnar Myrdal, Kris i befolkningsfrågan (Stockholm:  Albert Bonniers Förlag, 1934). 43 Assar Lindbeck, “The Swedish Experiment,” Journal of Economic Literature 35, no. 3 (1997): 1273–​1319. 44 Phelps, Mass Flourishing. 45 Adam Tooze, The Wages of Destruction: The Making and Breaking of the Nazi Economy (London: Penguin Books, 2006). 46 Ricardo J.  Caballero and Mohamad L.  Hammour, “The Cleansing Effect of Recessions,” NBER Working Paper No. 3922 (1991), accessed May 25, 2020, www.nber.org/​papers/​w3922. 47 Daron Acemoglu and James A.  Robinson, Why Nations Fail:  The Origins of Power, Prosperity and Poverty (London: Profile Books Ltd., 2012). 48 Hayek’s argument added weight to the work of Mises, who had started the debate with Oskar Lange. Mises’s argument was that socialism was impossible because central planning did not provide incentives to managers to test new methods or produce new products, lacking a profit motive. In the absence of market-​ determined prices, decision makers could not take into account the opportunity costs of the differing modes of production or the introduction of new products. 49 On the Icelandic experience, see Sigridur Benediktsdottir, Jon Danielsson, and Gylfi Zoega, “Lessons from a Collapse of a Financial System,” Economic Policy 26, no.  66 (2011):  183–​235; and Sigridur Benediktsdóttir, Gauti B.  Eggertsson, and Eggert Thórarinsson, “The Rise, the Fall, and the Resurrection of Iceland,” National Bureau of Economic Research No 24005 (2017), accessed May 25, 2020, www.nber.org/​papers/​w24005. 50 See Mariana Mazzucato, The Entrepreneurial State: Debunking Public vs Private Sector Myths (London: Penguin Random House, 2015). 51 See Amar V. Bhidé, The Origin and Evolution of New Businesses (Oxford: Oxford University Press, 2000). 52 On corporatism in the labor market, see Richard Layard, Stephen Nickell, and Richard Jackman, Unemployment:  Macroeconomic Performance and the Labour Market (Oxford: Oxford University Press, 2005).

Corporatism and economic performance  215 53 Phelps, Mass Flourishing; Edmund S.  Phelps and Gylfi Zoega, “The European Labour Markets—​The Search for Routes to Better Economic Performance in Continental Europe.” CESifo Forum 1 (2004): 3–​11. 54 On the role of capital flows in financial crises, see the chapters in Robert Z. Aliber and Gylfi Zoega, eds., The 2008 Global Financial Crisis in Retrospect (London: Palgrave-​Macmillan,  2019). 55 George A. Akerlof and Paul M. Romer, “Looting: The Economic Underworld of Bankruptcy for Profit,” Brookings Papers on Economic Activity 2 (1993): 1–​73. 56 William J.  Baumol, “Entrepreneurship:  Productive, Unproductive, and Destructive,” Journal of Business Venturing 11, no. 1 (1996): 3–​22. 57 Thráinn Eggertsson, Imperfect Institutions:  Possibilities and Limits of Reform (Ann Arbor: University of Michigan Press, 2005).

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Index

Note: Figures and tables are denoted by italic and bold text respectively, and notes by “n” and the number of the note after the page number e.g., 40n66 refers to note number 66 on page 40. 9/​11 see September 11, 2001 terrorist attack absolute power 4, 28, 30, 48–​50, 52, 60, 191 abuse 3, 8, 34, 40n66, 103; and War on Terror 71, 74, 78–​9, 81, 83 Adayfi, Mansoor 9, 72, 81, 83–​5 AfD (Alternative for Germany Party) 150, 151, 154 Afghanistan 9, 73–​4, 78, 93, 95, 101 Agamben, Giorgio 1, 3, 4, 7, 29, 47, 59, 168, 179; and exceptional biometrics 113, 115, 120–​21; and War on Terror 71–​5, 79–​82 al Qaeda 75, 78, 94, 101 anarchy 28, 45, 95 anti-​capitalism  150 anti-​colonialism  122 anti-​democracy  5, 148 anti-​liberal politics 2, 6, 145–​59 anti-​politics  5–​6 “Arab Spring” 1, 113 Arendt, Hannah 5, 9, 59, 169, 183n26 Argentina 6, 191–​3, 207 armed conflict/​armies 51–​3, 55–​60, 71, 76; see also military arrests 97, 100, 101, 108n71 Articles, of United Nations Charter 31, 32, 34, 35, 39n61 Australia 204–​6, 205, 208–​10 Austria 30, 146, 151–​2, 154, 155; and corporatism 204–​6, 205, 206, 208–​210 Austrian People’s Party 152

authoritarianism 2, 6, 10, 122, 141n17, 141n28, 155, 192, 193; and public engagement 164, 165, 166, 168, 178, 179 bare life 9, 71–​2, 74, 80–​4, 120 Baumol, William 210 Belgium 204–​6, 205, 206, 208–​10, 209 Benjamin, Walter 5, 105, 145, 155–​6 Berlusconi, Silvio 132, 154 Beveridge Report 199 biometrics 9–​10, 112–​24 bio-​surveillance 2, 9, 13 black criminality 90, 92, 103 black sites 73, 85n4, 85n5 blackness 92 Blackwater USA 9, 94–​8, 104, 106n26, 108n71 Blanco, Louisiana Governor Kathleen 90, 93, 97–​8, 102 Bobbio, Norberto 131, 135 Bodin, Jean 8, 28, 46, 48–​9 borders 10, 112–​14, 117–​20 Britain 47, 149, 193, 199, 211; see also United Kingdom Bush, George W. 29, 92–​4, 98, 101–​3; and War on Terror 71–​9, 83 Butler, Judith 81–​3, 121 Caesarism 45, 49, 132, 148 Camp Greyhound 90, 91, 94, 98–​104 Canada 204–​6, 205, 207, 208–​10 Canovan, Margaret 132, 148

220 Index capital 91, 97, 112, 174; and corporatism 189, 192, 194–​6, 198, 202, 204, 207, 211n4 capitalism 10, 12, 121, 132, 150; and corporatism 190–​2, 194–​6, 198, 204, 210 Center-​Right 147, 149, 152, 153 centralization 10, 12, 13, 59–​60; and corporatism 190, 191, 194, 195, 212n15 Chapter VII, of United Nations Charter 7, 31–​6, 39n58, 39n61 chattel Slavery 30, 79, 99–​101 Chávez, Hugo 132, 139 checks and balances 12, 13, 27, 32, 34, 36n11, 54, 55, 60, 190 China 4, 13, 188, 196 Christianity 94, 116 CIR (Common Identity Repository) 116–​17 civil rights 92, 98, 103–​4, 137, 150 civil society 4, 178, 179 civil wars 1, 46, 49–​52, 75, 113, 193 civilization 76, 77, 79, 83, 84 coercive power 46, 50–​1, 55–​60 cognitive diversity 173, 176 Cold War 32, 34, 60–​1, 129, 145, 166 colonialism 78, 113, 119, 122 colonization 77 Common Identity Repository (CIR) 116–​17 Commonwealth of Oceana 8, 45–​6, 54–​6, 61, 64n34, 65n54 commonwealths 50, 52–​4 Communism 165, 166, 167, 182n8, 190, 192, 194, 196 competition 155; democratic 152; economic 189, 192, 193, 197, 198, 201; electoral 12, 138, 140n16, 163; foreign 147, 198, 199; market 189, 192, 193, 197, 198, 201; political 171, 173, 178, 180; for power 171, 173, 174, 178 Congress 29, 45, 80, 97, 101 conservatism 4–​6, 10, 11, 116, 139, 145–​59 Conservative Right 145, 146, 151–​5 Constitutional Convention 45 constitutional criminal justice procedure 102, 103 convict leasing 100, 101 corporatism 6, 10, 12, 199, 213n24; and economic performance 188–​90, 200–​6, 204–​6, 209–​15, 210; and financial

crises 206–​209, 208, 209; in modern-​ day economies 13, 193–​8; political economy of 190–​3; and welfare state 198–​200 corporatist economies 198, 205–​6, 208, 210–​11 corporatist system 192, 194, 196, 199, 201, 206–​8 corporatist values 191, 192, 196 Council of Ten 46, 50, 54, 61, 65n54 counterinsurgency 90, 94–​8, 105 COVID-​19 pandemic 13, 13, 154, 179 Creation and Anarchy 121 criminal justice system 102 criminality, racialized 91 criminalizing discourse 93, 95 crises 1, 2, 4, 8, 34, 61, 192, 193; COVID-​19 1–​3, 13, 154, 179; in democracy 136, 140n8, 146–​9, 168, 174, 191; economic 3, 12, 13, 152, 153, 188, 191, 202; financial see financial crises; humanitarian 9, 90; Hurricane Katrina 9, 90–​109; immigration 5, 10, 112–​24; military 74–​5; of modernity 152, 153; in Oceania 54; political 119, 153; refugee 5, 10, 112–​24; of representation 146–​9 crisis management 3, 14n4 Crisis of Parliamentary Democracy, The 191 “crisis of representation” 146–​9 critical infrastructure 96–​7, 102 cultural conservatism 146 cultural differences 79, 83, 84, 155, 189–​90 cultural homogeneity 1, 150 cultural traditionalism 151, 153 culture 84, 116, 137, 166 Danish People’s Party (DP) 148, 150, 153 Davitti, Daria 120, 121 debt, government 208, 208, 210, 210 decisionism 2–​3, 7, 28, 37n15 decision-​making 131, 134, 169; and common values 167; and deliberative democracy 167, 170, 174, 184–​5n54; democratic 6, 10, 12, 169, 172–​4, 181; of Department of Defense 73; enlightened 182–​3n23; and Icelandic Constitutional Council 174–​175; inclusive 176–​9, 177, 180; institutional 130; and populism 131, 134; public

Index  221 participation in 163, 165–​8, 170, 173; of UN Security Council 7 Declaration of National Emergency by Reason of Certain Terrorist Attacks 72 Defoe, Daniel 57 deliberative democracy 10, 12, 121, 134; and public engagement 163–​5, 165, 167, 168, 170–​6, 181, 184–​5n54 Deliberative Poll 170–​1 deliberative systems 167, 172 demagoguery 134, 153 democracy: competitive electoral democracy 12, 163; constitutional 10, 130–​1, 134, 140n8, 148; deliberative 12, 164–​5, 167, 170–​6, 184–​5n54; direct 133, 134, 137, 138, 163; electoral 12, 141n25, 163, 171, 182–​3n23; epistemic 12, 164–​5, 172–​4, 176–​8; illiberal 135, 141n28; intrinsic value 164, 170; irony 163–​4, 168–​70, 173, 180; liberal see liberal democracy; liberal deliberative 165, 167; parliamentary 3, 11, 146, 191; party 129–​31, 137; populist 129–​42, 163; populist representative 138; representative see representative democracy; social 149, 199, 200 Democracy Disfigured 133 democratic authoritarianism 166 democratic authority 164, 181 democratic choice 164, 169, 170, 179 democratic decision-​making 6, 10, 12, 169, 172–​4, 181 democratic diarchy 133–​6 democratic exception 163, 168, 169, 178–​80 democratic governance 169, 176–​7, 177, 181 democratic irony 163–​4, 168–​70, 173, 180 democratic outcomes 163, 165–​70, 165 democratic paradox 12, 163, 168, 172–​3, 180, 183n24 democratic politics 7, 12, 59, 135, 141n17, 149, 171 democratic practice 164–​70, 165 democratic renewal 1–​2, 148 democratic theory 164, 170, 183n24 democratic values 13, 164, 173 demophobia 148 Denmark 154, 196, 200, 204, 204–​6, 205, 206, 207, 208–​10

Department of Defense (DOD) 73–​4 Department of Homeland Security (DHS) 97, 98, 102, 103 Department of Justice 75 detention: counterterror 98–​104; in Guantánamo Bay detention center 9, 72–​6, 78–​3, 85n5, 102, 103; indefinite 73, 74, 81, 84, 94, 99 deterrence 117–​19 DHS (Department of Homeland Security) 97, 98, 102, 103 diarchic theory, of democracy 133–​4, 136, 137 dictatorship: constitutional 7, 8, 45–​7, 56, 61; of Oceania 46, 54–​6, 61; republican 8, 45–​67; Roman 8, 46–​50, 56, 60, 65n60; theory of 47, 59 Directive on the Treatment of Detainees 72, 75 disaster relief 98 discretionary powers 29, 34, 48 division of powers see separation of powers DOD (Department of Defense) 73–​4 DP (Danish People’s Party) 148, 150, 153 Dublin III Regulation 114, 115, 123n4 Dulles, John Foster 33–​4 European Central Bank 202 economic competition 189, 192, 193, 197, 198, 201 economic crises 3, 12, 13, 152, 153, 188, 191, 202 economic growth 188, 189, 190, 195, 197, 198, 200 economic performance 12, 13, 188–​215, 204–​6, 205, 208–​10 economies: corporatist 198, 205–​6, 208, 210–​11; modern-​day 13, 193–​8, 209–​10 ECOSOC (United Nations Economic and Social Council) 197 EEA (European Economic Area) 116 Eggers, Dave 99, 101–​3, 108n71 elections 2, 11, 13, 154, 193; and populist democracy 133–​8, 141n20, 141n25, 141n28; and public engagement 167, 171, 173, 174, 178 electoral competition 12, 138, 140n16 electoral politics 12

222 Index elites 1, 5–​6, 11, 132, 133, 190; and populist right 146–​9, 151, 153, 155; and public engagement 166, 167, 173–​4 emergency, national 29, 31, 38n40, 71–​81 emergency powers 2, 3, 7, 8, 13, 28, 30–​2, 36, 46, 61 emergency rule 2, 27, 29–​30 employment protection 194, 197, 203–​5, 204, 213–​14n37 England 45–​46, 48, 50–​2, 58, 74–​5 Enlightenment 27, 56–​8, 60 epistemology, border 112 Erdoğan, Recep Tayyip 6, 152 establishment, political 1, 5, 10–​11, 132, 134, 137, 138, 147 ethical response-​ability  82 ethno-​nationalism 5–​6, 148, 153 European Union (EU) 10, 112–​14, 150, 192 European Economic Area (EEA) 116 exception: as alibi 71–​87; and biometrics 120–​2; counterterror 90–​109; state 112, 113 exception clauses 30 exceptional absolutism 60 exceptional biometrics 112–​24 exceptional powers 3, 8, 12–​13, 35, 48, 61, 191 exceptionalism 54, 79, 113, 116 exclusivism 5, 145, 148, 150, 153 executive branch 29, 71–​4, 80, 98, 165 executive decisionism 2 executive power 1, 3, 7, 12, 27–​9, 50, 74, 167, 174 executive prerogative 61 externalization 10; and biometrics 118–​20, 122; as deterrence 117–​18 Fabian Society 199, 214n39, 214n40 Fanfani, Amintore 194 far-​right 5–​6, 11, 149–​54 fascism 10, 11, 13, 191, 193, 194; and populist democracy 132, 137, 142n38; and populist right 145–​7, 150–​3, 155–​6 federal government 60, 96–​8, 104 Ferguson, Adam 8, 47, 58, 60, 61 feudalism 51, 52, 57, 58, 196 Fidesz Party 4, 152, 154 financial crises 1, 5, 145, 175; and corporatism 188, 190, 195, 202, 206–​9, 208–​10, 215n54

Finland 154, 196, 200, 204, 204–​6, 205, 208–​10 First World War see World War I Fishkin, James 170–​1 Fletcher of Saltoun, Andrew 8, 47, 56–​8, 60, 61, 66n72 force-​of-​law  60 Foucault, Michel 8, 47, 57 FPÖ (Austrian Freedom Party) 147, 149–​52, 154 France 6, 57–​8, 74–​5, 146, 150; and corporatism 188, 192–​193, 197, 204–​6, 205, 206, 208–​10 Franco, Francisco 192–​3 free movement 114 Freedom Party (FPÖ) 147, 149–​52, 154 freedoms 3, 30, 135–​7, 165; economic 203, 204–​5, 204–​6, 209, 210 FrP ([Norwegian] Progress Party) 150, 153 GDP (Gross Domestic Product) 188, 194, 198, 202, 203, 208; see also public debt General Assembly, of United Nations 30, 31, 34 Geneva Conventions 30, 71, 73–​6, 78, 103 geopolitics 113, 119–​20 Germany 28, 74–​5, 114, 115, 146, 151, 154, 155; and corporatism 188, 190, 192, 195–​6, 199, 204–​6, 205, 209, 208–​10 Global South 113, 122 Golden Age, of economic growth 188, 195 government: authoritarian 178, 179, 192; constitutional 8, 47, 50, 61; federal 60, 96–​8, 104 government debt 208, 208, 210, 210 governmentality 113, 116 Great Britain 47, 149, 193, 199, 211; see also United Kingdom Great Recession 1 Greece 118, 151, 152; and corporatism 195, 197, 204–​6, 204–​7, 208–​10, 209, 211 Gross Domestic Product (GDP) 188, 194, 198, 202, 203, 208; see also public debt Grotius, Hugo 46, 48, 49 growth, economic 188, 189, 190, 195, 197, 198, 200

Index  223 Guantánamo Bay detention center 8–​9, 71, 74, 79, 99, 103; see also Camp Greyhound “Guantánamo culture” 84–​5 Guantánamo Diary 78, 83 Habermas, Jürgen 142n34, 177, 179 Hague Convention 76 Haider, Jörg 147, 149 Harrington, James 8, 46, 50–​7, 59, 61, 62n5, 63–​4n26, 64n34, 65n60 Hayek, Friedrich 201–​2, 214n48 Hebrew Judges 46, 50, 56, 61 Hebrew republicanism 8, 46 Heritage index, of economic freedom 203–​7, 204–​6, 209, 209, 210 historical fascism 145, 151, 155 Hobbes, Thomas 8, 28, 31–​2, 39n53, 46, 48–​54, 61, 63–​4n26 homo sacer 120–​121 Homo Sacer: Sovereign Power and Bare Life 80 House of Representatives 96 How Terrorists Might Exploit a Hurricane 102 Hull, Cordell 34, 40n74 human rights 13, 32, 33, 40n66, 97, 98, 119, 122; and War on Terror 76–​9, 81 humanitarianism 120 Hume, David 46 Hurricane Katrina 9, 90–​109 Hussain, Nasser 3, 75 ICC (International Criminal Court) 33 Iceland 116, 202, 207, 208 Icelandic Constitutional Council 175, 176 ICT (Information and Communications Technologies) 13, 189 identification, state 112, 114, 117–​19, 122, 123 identity 80, 84, 112, 114, 116, 123, 150, 166; of law and force 8, 47, 56, 58 identity politics 151 ideology 2, 5, 6, 8, 11, 29, 121–​2; counterterror exception 92, 97, 99; populist democracy 129, 131, 134; populist right 145–​56; public engagement 166, 181 IEEPA (International Emergency Economic Powers Act) 29, 38n40 IHL (International Humanitarian Law) 9, 72, 75, 86n19

ILO (International Labor Organization) 197 immigration crisis, of European Union 5, 10, 112–​24 imperialism 7, 8–​9, 47, 92, 106n20, 113, 191, 199; and War on Terror 71, 72, 74, 76, 77, 79 incarceration 9, 90, 99, 101, 102 indefinite detention 73, 74, 81, 84, 94, 99 individualism 191 innovation 188–​90, 195–​7, 199, 201–​3, 211n4 institutionalization 6, 12–​13, 55, 130, 147, 190, 194, 196 instrumental rationality 4 insurgency 9, 90–​4, 97, 104–​105; domestic 9, 45, 90–​3, 103, 104 insurrection 45, 48, 58, 93 interest groups 165, 167, 172, 176–​8, 190, 195, 203, 211 International Court of Justice 30, 31, 33, 39n58 International Covenant on Civil and Political Rights 30 International Criminal Court (ICC) 33 International Emergency Economic Powers Act (IEEPA) 29, 38n40 International Humanitarian Law (IHL) 9, 72, 75, 86n19 International Labor Organization (ILO) 197 international law 30, 34, 74–​7, 86n19 interrogation 74, 84, 85n4, 85n5 Iraq 9, 32, 40n66, 90, 92–​5, 113, 118, 122 Ireland 202, 204–​6, 207, 208–​10 Islam 9, 78, 79, 80, 83, 115, 146, 150; and counterterror exception 90–​91, 98, 99, 101, 103 Islamophobia 99, 103, 122 Italy 6, 13, 74–​5, 129; corporatism 188, 192, 194–​8, 204–​6, 205, 206, 208–​210, 210, 213n24; exceptional biometrics 115, 118, 119; populist right 151, 154, 155 Japan 188, 190, 207 Jobbik 151, 152, 154, 158n34 Keynes, John Maynard 193, 196, 213–​14n37 Kingdom and the Glory, The 121 Kitschelt, Herbert 151, 152

224 Index labor force participation 200, 203, 205–​6, 206, 209–​10 labor unions 6, 13, 190, 192–​4, 196–​201, 203, 204, 213n19 Laclau, Ernesto 132, 147, 148 Lafont, Cristina 171–​2 Lange, Oskar 201, 214n48 law enforcement 91, 94, 96–​8, 101, 116 law of armed conflict 9, 72, 75, 86n19 lawlessness 91, 92 left-​wing politics 5, 11, 147–​9, 151, 152, 155, 199 Lega 151, 154 legal norms 4, 28, 31, 71 legislative powers 53 Leviathan 8, 31, 50, 51, 61, 64n29 liberal constitutionalism 2, 12, 190 liberal deliberative democracy 165, 167 liberal democracy 1–​3, 5–​7, 10, 12, 13, 148, 149; and populist democracy 135–​8, 141n24; and public engagement 163, 173, 178 liberal disorder 13 liberal legalism 4 liberal values 165, 165–​7, 174 liberalism 2–​6, 10–​13, 104, 136–​7; American liberalism 104; pluralist 165; and populist right 146–​8; and public engagement 165, 165–​9 liberties 1, 135–​7, 142n34, 164, 179; and republican dictatorship 45, 47, 50, 53–​6, 58–​61, 62n7 looting 9, 90–​2, 94, 95, 98–​100 Louisiana State Penitentiary 99, 100 Machiavelli, Niccolò 8, 33, 45–​51, 54, 61, 63–​4n26 Madison, James 8, 45, 47, 58–​61 majoritarianism 55, 148 market competition 189, 192, 193, 197, 198, 201 market liberalism 147, 151, 165, 167 Martens Clause 75–​6 Marxism 150, 198–​9 mass incarceration 9, 90, 99, 101 mass participation 10, 12, 163, 165, 165, 170–​2, 174 Me the People 133 Meaningful Integration of Data Analytics and Services (MIDAS) 118 Mégret, Frédéric 76–​8 Memorandum of Notification (September 17, 2001) 72, 85n5

mercenaries 57, 94, 97–​8 MIDAS (Meaningful Integration of Data Analytics and Services) 118 migrant crisis, of European Union refugee 5, 10, 112–​24 militarization 3, 9, 90, 92, 95, 104, 105 military crises 74–​5 mini-​publics 170–​3, 177 minority rights 5, 147, 150, 156 Modi, Narendra 6, 152 monarchies 8, 45–​9, 51, 52, 56, 57, 61 monopoly 28, 60, 172, 198, 201 Mouffe Chantal 131, 147, 149, 183n24 Movement for a Better Hungary, The 151, 152, 154, 158n34 Mudde, Cas 5, 141n24, 146–​7, 155 Müller, Jan-​Werner 148, 152 multiculturalism 1, 11, 146, 150, 155 Murukawa, Naomi 92 Muslims see Islam Mussolini, Benito 142n38, 151, 191–​4, 210, 212–​213n18 Myrdal, Alva and Gunnar 200 national emergency 29, 31, 38n40, 71–​81 National Guard 90, 92–​3, 98, 100, 101, 108n71 National Industrial Recovery 193 national security 1, 38n40, 90–​1, 93, 96, 97, 103, 104, 116, 202 National Socialism 2, 3, 17n23, 79–​80, 151, 154, 192, 199, 201 national values 75, 76, 210 nationalism 5–​6, 11, 104, 113, 115–​116, 166, 191; and populist right 146–​8, 150–​5 nativism 151, 156 Nazism 2, 3, 17n23, 79–​80, 151, 154, 192, 199, 201 Nelson, Richard 189 neoliberalism 147, 151, 165, 167 neo-​Nazism 151, 153 Netherlands 6, 204–​6, 208–​10 neutrality 2, 4 New Deal 193, 213n19 New Zealand 204–​6, 205, 208–​10 Nordic countries 146, 190, 195, 196, 199, 200, 204 normalization, of states of exception 1, 98 Norway 154, 200, 204, 204–​6, 205, 208–​10

Index  225 objectification 80–​2 Oceana, commonwealth of 8, 45–​6, 54–​6, 61, 64n34, 65n54 OECD (Organization for Economic Cooperation and Development) 195, 203, 205, 204–​6, 208–​10 Oliver, Kelly 82–​4 Orbán, Viktor 4, 6, 115–​16, 137, 152, 154, 182n11 Organization for Economic Cooperation and Development (OECD) 195, 203, 205 P5 (permanent members of UN Security Council) 7–​8, 30–​6 pacification 92, 94–​8 paramilitary actors 9, 90, 94, 97, 104 Parliament 28, 30, 51, 57, 152, 154, 175, 176 Patriot Act 29 Perón, Juan Domingo 136, 138–​9, 141n20, 191–​3, 210, 212n15 Personal Identification Secure Comparison and Evaluation System (PISCES) 118–​19 personhood 71, 72, 74, 76, 79–​80, 83, 84 Pétain, Philippe 192–​3 Phelps, Edmund 189, 190, 196, 203 PISCES (Personal Identification Secure Comparison and Evaluation System) 118–​19 pluralism 5, 10, 60–​1, 130, 134, 137, 147, 150, 201 Podemos 151 policy-​making 12, 194; and public engagement 163, 164, 166–​7, 170, 171, 174, 176–​81, 183n26 political agency 12, 165, 174, 175, 177–​80 political competition 171, 173, 178, 180 political economy of corporatism 190–​3 political parties 10, 130, 134, 138, 148, 173–​4, 180, 191, 194 political power 51, 53, 130, 178 political practices 7, 11, 136–​7, 145, 149–​153 political representation 140n7, 168, 175 politics: anti-​ 5–​6; anti-​liberal 2, 6, 145–​59; competitive electoral 12; democratic 7, 12, 59, 135, 141n17, 149, 171; electoral 12; geo-​ 113, 119–​20; left-​wing 5, 11, 147, 148, 149, 151, 152, 155, 199; populist 13, 134, 139,

171; right-​wing 94, 150–​2, 154, 155; techno 7–​10, 45–​67 popular will 27, 133 populism, right-​wing 5, 11, 147–​2, 154–​6 populist ambition 137–​9 populist democracy 129–​42, 163 populist representative democracy 138 populist Right 6, 11, 145–​59 Portugal 13, 192–​4, 204–​6, 205, 209, 208–​10 Posse Comitatus Act 98 post-​9/​11 3, 7, 9, 29, 35, 75, 90–​2, 94, 101, 104 power: absolute 4, 28, 30, 48–​50, 52, 191; coercive 46, 50–​1, 55–​60; decision-​ making 131, 134, 169; discretionary 29, 34, 48; executive see executive power; legislative 53; military 4, 51–​3, 55, 74; political 51, 53, 130, 178; sovereign see sovereign power; state 80, 139 private security contractor (PSC) 9, 90, 91, 94–​100, 104 Proclamation 7463, September 14, 2001 72 productivity 188, 189, 195, 200–​3 PSC (private security contractor) 9, 90, 91, 94–​100, 104 public debt 196, 198, 208, 209, 210 public decision-​making 168, 170, 173, 178 public engagement 12, 163–​85, 165, 177 public participation, in decision-​making 6, 10, 12, 148; and public engagement 163, 166–​8, 170, 173, 174, 178, 179 public reason 165, 167, 173, 174, 177 Putin, Vladimir 6, 152, 166 racial dehumanization 92 racial differences 79 racial homogeneity 155 racialization 77–​80; and counterterror exception 91, 94, 99–​102, 106n20 racialized incarceration 99 racism 8, 9, 71, 90, 92, 94, 113, 122, 147, 150, 156 Radical Left 5, 149, 151–​2 Radical Right 6, 11, 145–​6, 149–​55 Rassemblement National (RN) 150, 154 RDI (Rendition, Detention, and Interrogation) 85n4, 85n5 refoulement 115, 118, 119

226 Index refugee conventions, of United Nations 10, 115, 118 refugee crisis, of European Union 5, 10, 112–​24 Reichstag 3, 17n23, 28 religion 4, 30, 80, 121 rendition 78 Rendition, Detention, and Interrogation (RDI) 85n4, 85n5 representation, political 140n7, 168, 175 representative democracy 5–​6, 10, 11, 147, 156, 177; and populist democracy 129–​35, 137–​8 republican dictatorship 8, 45–​67 republican values 137 republicanism 8, 45, 46, 48, 60 republics 28, 30, 37n20, 154, 199, 213n24 revolutions 4, 13, 52, 57, 58, 66n84, 74–​5, 166, 174 right to life 30 right-​wing politics 94, 150–​2, 154, 155 right-​wing populism 6, 11, 145–​59 RN (Rassemblement National) 150, 154 Roman dictatorship 8, 46–​50, 56, 60, 65n60 Roosevelt, Franklin D. 193 Rossiter, Clinton 2, 60, 61 Rovira Kaltwasser, Cristóbal 5, 146–​7 rule of law 1–​3, 7, 8, 84, 155; corporatism 202, 203; populist democracy 130–​1, 135; public engagement 169, 170; republican dictatorship 47, 50, 54, 57, 58, 60–​2; sovereignty 28, 29, 35, 41n94 Rump Parliament 51 Russia 13, 166, 178, 183n24 Salazar, Antonio 192–​3 Salvini, Matteo 6, 137, 151 Scandinavia 153–​5, 196, 200, 207, 211 Schengen Agreement 114, 115 Schmitt, Carl 2, 4, 7, 8, 17n25, 27–​41, 60, 63n15, 71, 113, 191, 194, 195 Schumpeter, Joseph 171, 173 Scottish Enlightenment 56–​8 Second World War see World War II Secretary of Defense 73, 95 securitization 91, 95, 97, 114, 115, 117, 119, 122, 123 security, national 1, 38n40, 90–​1, 93, 96, 97, 103, 104, 116, 202

Security Council, of United Nations 7–​8, 30–​5, 36, 39n58, 39n60, 40n67, 40–​1n83, 41n94 sedition 46, 48–​50, 52, 53, 56 semi-​authoritarian 11, 146, 152, 154 senate 54–​5 separation of powers 5, 7, 12, 73, 149, 190; and populist democracy 130–​1, 135, 137; and sovereignty 28–​31 September 11, 2001 terrorist attack 1, 2–​3, 29, 71–​3, 79, 93, 94, 101–​2; post-​, 3, 7, 9, 29, 35, 75, 90–​2, 94, 101, 104 Shays’ Rebellion 45, 58–​9 Singh, Nikhil 104 Slahi, Mohamedou Ould 9, 72, 78–​81, 83–​4 slavery 30, 79, 99, 100, 101 “sleeper cells” 101 social democracy 149, 199, 200 social inequalities 1–​2, 5, 6, 148, 149 socialism 142n38, 146–​7, 151, 154, 192, 198, 199, 201–​2, 214n48 socialization 112, 123 South America 189, 190, 194, 202, 207, 208 sovereign authority 31, 32, 34 sovereign equality 32, 34, 35 sovereign power 3, 27, 31, 48–​50, 54, 78, 82, 120, 121 sovereignty 2, 3, 5, 7–​8, 10, 27–​41, 48–​9, 77, 79, 129, 131, 147, 148; and exceptional biometrics 112, 113, 115, 117, 120, 122 Spain 13, 151, 192, 194, 205–​9, 204–​6, 208–​10 special interest groups 167, 176–​8 standing army 52, 56–​8, 60 state failure 113, 120, 122 state identification 112, 114, 117–​19, 122, 123 State of Exception (book) 80 state power 80, 139 state sovereignty 112 state theory 27 states of emergency 5, 9, 13, 60, 73–​5, 79, 145, 191, 194 states of exception (concept) 1–​5, 7–​10, 47, 113–​14; counterterror 90–​1, 98 Strategic Red Cell: How Terrorists Might Exploit a Hurricane 102 subjecthood 72, 79, 81–​5 subjectivity 72, 78, 81–​3, 113, 115, 122 Supreme Court 29, 102, 103, 193

Index  227 surveillance 1, 2, 9, 10, 13, 102, 104, 112, 118, 119, 121 Sweden 6, 146, 193, 196, 200, 204, 205, 204–​6, 208–​10 Sweden Democrats 151, 153 Switzerland 74–​5, 205, 204–​6, 208–​10 TCN (Third-​Country National) 116–​17 technicity 4–​5 technocracy 1–​2, 5–​6, 148 technology 4, 7–​10, 13, 17n25, 112, 117, 123, 172; and corporatism 189, 194–​6, 211n4; and republican dictatorship 57, 58, 60, 66n84 technopolitics 7–​10, 45–​67 terrorism 1, 3, 34, 116, 118, 169; and counterterror exception 90, 91, 93, 94, 98–​9, 101–​102 and War on Terror 71–​3, 78–​80, 84, 85n5 Thatcherism 149 thin ideology 5 “Third Way” 6, 10, 149, 194 Third-​Country National (TCN) 116–​17 threats 2, 11, 13, 31, 35, 38n40, 169, 172; and corporatism 192, 199; and counterterror exception 92, 93, 97, 102; and exceptional biometrics 115–​18, 120, 122; and populist right 145, 147, 151; and War on Terror 71–​3, 79 threshold, between juridical and extra-​juridical power 8, 47, 60, 61, 71, 77, 81, 120, 121 Title 18 of United States Code 98 Tooze, Adam 201 torture 30, 77, 80–​1, 83, 84 Torture Memos 74–​8 totalitarianism 3, 27, 28, 141n17, 169 trade unions see labor unions tribunes 54–​5 Trump, Donald J. 6, 29, 38n38, 132, 137, 139, 152, 166 Turkey 114, 118, 119, 178 UCMJ (Uniform Code of Military Justice) 95 UN see United Nations (UN) unemployment 188, 191, 194–​7, 199, 200, 203, 205, 205, 206, 209–​10 unification 134, 195–​6 Uniform Code of Military Justice (UCMJ) 95

unions see labor unions United Kingdom 116, 189, 205, 207; see also Great Britain United Nations (UN): Charter 7–​8, 31–​6, 39n58, 39n61; Economic and Social Council (ECOSOC) 197; General Assembly 30, 31, 34; refugee conventions 10, 115, 118; Security Council 7–​8, 30–​6, 39n58, 39n60, 40n67, 40–​1n83, 41n94 United States 3, 92, 101, 102, 129, 150; and corporatism 188–​90, 193, 195, 199, 205, 206, 207, 211, 211n4; and republican dictatorship 45, 47, 58–​9, 61; and state of exception 29, 32, 38n38, 38n40, 40–​1n83; and War on Terror 72, 74–​7 Urbinati, Nadia 148 values: corporatist 191, 192, 196; cultural 149, 151; democratic 13, 164, 173; and economic dynamism 189; of European Union 114; liberal 165, 165, 166–​7, 174; moral 4–​5; national 75, 76, 210; republican 137 Venetian republicanism 8, 46, 54 Verfassung 30 violence 2, 3, 8–​9, 11, 28, 58, 72, 79, 92, 104, 120, 146 wage supplementation 197–​8 War on Terror 8, 9, 71–​87 warfare 59, 61, 66n84, 78, 90–​2, 97, 104 Weber, Max 4–​5, 28 Weimar Republic 28, 30, 36n10, 41n88, 192, 199 welfare 11, 114, 165, 166, 213–​14n37, 214n40; and populist right 146, 151–​3 welfare state 195, 196, 198–​200 whiteness 91, 92, 97, 103 witnessing 72, 82–​4 World War I 28, 29, 199 World War II 6, 10, 35, 75, 78, 145, 150, 188, 189, 192–​3 Zeitoun 99, 108n71 Zeitoun, Abdulrahman 99, 101–​3, 108n71 zone of indistinction, between juridical and extra-​juridical power 8, 47, 60, 61, 71, 77, 81, 120, 121