Emergencies and Politics : A Sober Hobbesian Approach 9781107421684, 9781107044319

Citation preview

Emergencies and Politics

In this book, Tom Sorell argues that emergencies can justify types of action that would normally be regarded as wrong. Beginning with the ethics of emergencies facing individuals, he explores the range of effective and legitimate private emergency response and its relation to public institutions, such as national governments. He develops a theory of the response of governments to public emergencies which indicates the possibility of a democratic politics that is liberal but that takes seriously threats to life and limb from public disorder, crime or terrorism. Informed by Hobbes, Schmitt and Walzer but departing substantially from them, the book widens the justification for recourse to normally forbidden measures, without resorting to illiberal politics. This book will interest students of politics, philosophy, international relations and law. tom sorell is Professor of Politics and Philosophy at Warwick University. From 2008–2012, he led the European Union FP7 Security project DETECTER (on the ethics and human rights issues surrounding the use of detection technologies in counter-terrorism), and is now leader of several Work Packages in the current SURVEILLE project (2012–2015). He is Principal Investigator of the major AHRC project, ‘Responsibilities, Ethics and the Financial Crisis’ (FinCris) running from 2012–2015 and also contributes to the FP7 IT project ACCOMPANY on robotics and care companions. He has published monographs in history of philosophy, especially on Hobbes and Descartes; moral and political philosophy; epistemology and philosophy of science; as well as several distinct areas of applied ethics.

Emergencies and Politics A Sober Hobbesian Approach

tom sorell University of Warwick

University Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107044319  C Tom Sorell 2013

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Sorell, Tom. Emergencies and politics : a sober Hobbesian approach / Tom Sorell. pages cm Includes bibliographical references and index. ISBN 978-1-107-04431-9 (hardback) 1. War and emergency powers – Philosophy. 2. Democracy. 3. Liberalism. 4. Rule of law. 5. Hobbes, Thomas, 1588–1679. I. Title. JF256.S67 2013 363.3401 – dc23 2013016804 ISBN 978-1-107-04431-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For Brenda and Conor McHugh

Contents

Preface

page ix

Acknowledgements

xix

1 Private emergencies and institutions

1 3 7 14 16

Private emergencies and excusable wrongdoing Emergencies and moral latitude Emergencies and harm Ethics for private emergencies

2 Public emergencies, black holes and sober Hobbesianism From private to public emergencies Black holes and the state of nature From unreconstructed to sober Hobbesianism

3 Liberalism with Hobbesian sobriety Institutions as legitimized by individuals’ reasons for action Rights grounded in interests Autonomy and social forms Reason and critical abilities The strains in Raz

4 Can liberal emergency response address threats to peoples and civilizations? The liberal domestication of emergency Schmitt: Can there be a liberal domestication of emergency? Second thoughts about the high points of politics, homogeneous nations and ‘civilizations’ Beyond the national and the tribal?

5 Liberalism and emergency response: national community National community

22 22 25 28 55 61 64 67 70 74 85 85 93 109 116 121 122

vii

viii

Contents Emergency and community Unassimilated minorities National autonomy, relativism and fundamentalism Emergency response in liberalism with Hobbesian sobriety

6 Legislating for emergencies and legislating in emergencies The old normal, the new normal and the abnormal Normal vs. abnormal again: domestic and international law

7 International security, human security and emergency Thick and thin conceptions of security Human security vs. state security Foreign emergency: humanitarian intervention International emergency: the case of climate change

Conclusion Index

124 129 134 139 148 153 165 176 176 180 187 191 202 207

Preface

Emergencies are situations, often unforeseen, in which there is a risk of great harm or loss, and a need to act quickly and decisively if the harm or loss is to be averted or minimized. An agent may be faced with a risk of great harm or loss to himself, or great harm or loss to others, sometimes a whole citizenry. The agent may be an individual, acting in an unofficial capacity, or a government or public agency. Is it morally permissible for agents of any of these kinds to avert harm or loss by means that morality or liberal politics would normally prohibit? Should they always intervene? And when they can successfully avert or limit the harm, are they permitted to do so at all costs, including moral costs? If the only way of saving many lives is by lying, or stealing, or resorting to violence, should the relevant agents lie, steal, or resort to violence? Are there certain things, such as the infliction of torture, that are unthinkable means of saving even large numbers of lives? Finally, are there certain things that institutional agents may do in coping with a public emergency that individuals are never permitted to do in confronting a private emergency? These are among the normative moral and political questions raised in this book. With many other writers, I argue that emergencies can justify types of action that would normally be regarded as wrong. Especially where what is at stake is life or lives, and there is no other way, the moral overridingness of saving life makes lying or stealing or resorting to violence to save a life permissible, and sometimes obligatory – other things being equal (Chapter 1). The escape clause is necessary because there are emergencies and emergencies. If the reason one is faced with the demand to save a life is that one has negligently put that life in danger, then the need for doubtful means to bring off a rescue is partly of the agent’s own making. In that case, the usual excusability of the wrong that has to be done to meet the emergency may be undercut altogether or at least reduced. In general, emergencies just waiting to happen because they have negligently been allowed to develop excuse ix

x

Preface

less wrongdoing than unavoidable emergencies. Emergencies that have been allowed to develop include emergencies that have been sought out, e.g., by devotees of ‘extreme’ sports, or by people who like fighting. The overridingness of saving life and of not putting life in jeopardy creates a presumption in favour not only of intervening in an emergency but also of preventing it altogether. There is also a presumption in favour of what I call ‘domesticating’ emergencies, at least in many cases (Chapter 1). Emergencies are domesticated when types of routine are developed for containing the more familiar types of imminent harm or loss efficiently rather than preventing them. In the case of public emergencies in developed countries, these routines are the responsibility of specialized emergency services. The repeatedly rehearsed techniques of firefighters and drills by the rest of us have succeeded in minimizing the effects of conflagrations in factories, schools and hotels, for example, and comparable procedures of ambulance personnel now prevent deaths from heart attacks. The worse an avoidable emergency is, the more stringent the obligation to prevent or domesticate it. The worst of the avoidable emergencies are what can be called ‘public emergencies’ – threats to life facing significant numbers of people or whole populations. The reasons these are the worst emergencies are that they involve significant harm to large numbers of people and that they can trigger a general descent into ruthlessness that I call a moral ‘black hole’. This is a situation in which most of a large number of people behave as if everything is permitted. Although public emergencies are more likely to give rise to black holes than private ones, black holes do not necessarily attend public emergencies, and their relative rarity in fact makes them weak reasons for avoiding emergencies. Still, the large-scale harm threatened by public emergencies is by itself a reason to domesticate them or prevent them. Another is that public emergencies multiply private emergencies to which individuals are often unequal, and in which they sometimes have to play God. Chapter 1 discusses the ethics of private emergency – emergency facing individuals – and indicates a connection between effective and legitimate private emergency response and the existence of public, including political, institutions. Chapters 2 to 5 develop a theory of the response of governments to public emergencies. In an earlier version of the book, I tried to bring the full range of public emergencies within the scope of the theory, but to make it manageable, the discussion is

Preface

xi

now mostly confined to political emergencies. The theory developed combines materials from Hobbes and Raz to indicate the possibility of a democratic politics that is (thinly) liberal but that takes more seriously than other liberalisms threats from disorder or crime or terrorism to life and limb. The theory is Hobbesian, but with many departures from the unreconstructed Hobbes. Being liberal, the account invites objections from theorists who think that questions about emergency response are nothing less than the undoing of liberalism. It invites objections in particular from critics of liberalism who have themselves appropriated Hobbes for the articulation and defence of an illiberal politics (see Chapter 4). The responsibility for preventing public emergencies, or containing them when they cannot be prevented, has traditionally fallen on nation-states and their specialized protective institutions, including police forces, armies, rescue and health services, and agencies for such things as food hygiene and building standards. Governments have an obligation not only to respond to threats facing citizens but to minimize the need for private rescue and for individuals to play God. In this way emergency politics – the theory of the obligations of legitimate public institutions – takes up the slack left by emergency ethics. Not only politics at the level of individual nations is implicated. Supranational institutions are also increasingly assigned a role in emergency response. Political theory and law usually take war, internal or external, to be the prototype of the public emergency, and this will be the type of emergency that gets most attention in this book. According to some theorists, internal war is to be prevented by rigorous legal controls on aggression, and war in the international arena is to be prevented by strategic alliances, shows for the benefit of non-allies of a willingness and ability to repel invasion, and, in recent times, by the development and enforcement of international law. What happens when preventive measures fail and war is about to break out or has already started? In that case, political theory and law alike have traditionally placed the power to mobilize force in a head of state or a committee with dictatorial powers, these powers to be retained not only to meet an existing emergency but according to some theorists, for as long as there is a threat of one. Theorists divide over whether a significant threat of war is permanent or temporary. The view that the threat of war and the corresponding need for dictatorship are at most temporary is close to common sense, and eventually I will

xii

Preface

endorse it. But the opposing view is the more interesting of the two philosophically, and there is a considerable amount to be learned from seeing what is wrong with it. Thomas Hobbes is the main early modern source of the view that human beings are by nature warlike, and that highly centralized, unlimited power is needed all the time to keep these warlike tendencies in check (Chapter 2). A more recent variation on this position is due to Carl Schmitt.1 Up to a point influenced by Hobbes, Schmitt’s view (Chapter 4) also reflects aspects of the constitutional crises of the Weimar period in Germany. Hobbes and Schmitt agree on more than the point that a public emergency needs a strong response from a government with unified decision making. They also agree that the purpose and correct form of a state in normal times is to be drawn from the requirements for a state response to emergency. There is something of value in this point of agreement between Hobbes and Schmitt. Emergency makes vivid the worth of a unitary, central authority that can quickly translate decision into action. But emergency can also put in an unflattering light the divided and protracted decision making of peacetime. Divided decision making is incipient war, according to Hobbes, and the purpose of the state is to avoid war. Again according to Hobbes, behaving as a citizen is best seen as an exercise in self-preservation, so that there is something irrational about disturbing the peace or unsettling a government that is good at maintaining order. Someone who accepts the responsibilities of government is supposed to decide in a more impartial way than citizens what their protection requires, and citizenship requires deference to that co-ordinating and dispassionate directing intelligence. The design of the state is to be dictated by the overriding goal of public safety, a goal that everyone would agree to adopt if they were clear-headed about the consequences of not doing so. For Schmitt, on the other hand, government is not for public safety. It is for energizing a popular will and, for example, enabling it to realize in history a certain sort of mythic self-image in the face of enemies. The 1

Schmitt’s views have been rediscovered and widely discussed since 9/11. He is only one of a range of European thinkers in the 1920s and 1930s who brought Hobbes’s ideas to bear on the political instability of the period. See L. Foisneau, J.-C. Merle and Tom Sorell, eds. Leviathan Between the Wars: Hobbes’s Impact on Early Twentieth Century Political Philosophy (Frankfurt: Peter Lang, 2005). Schmitt was a consistent admirer of Hobbes, although a critical one.

Preface

xiii

vehicle for energizing a people is a personal will in tune with a people’s will, the sort of personal will given authority when dictatorial powers are conferred on a political leader in an emergency. If Schmitt is right, emergency makes vivid the superiority of decision to debate even in a non-emergency situation. Even in normal times, according to him, decision concentrated in a dictator is a better channel for a people’s will (and so for democracy) than the rational debates of a parliament: for one thing, these debates force matters that people would or ought to be willing to die for into the distorting mould of values that can be balanced against one another and decided between coolly after rational debate. There is an important difference between these two appreciations of dictatorship, and one that seems to me to show that, of the two, the unreconstructed Hobbesian one is much to be preferred. I have in mind Hobbes’s implied critique of a kind of fundamentalism that Schmitt positively requires in a dictator. Hobbes nowhere claims that the commonwealth should be dedicated to values that define its citizens as a people in history. On the contrary, he denies that citizens ought to be willing to fight to the death for such values. Both personal and group fundamentalism are things that the commonwealth is bound to discourage, precisely because they lead to violent conflict (Chapter 2). The purpose of the commonwealth is nothing other than the preservation of life and productive activity, and fights to the death in any cause other than collective self-defence or survival are outlawed. Authorized dictatorship is the medium by which the goal of the security of each can be pursued without being sidetracked by disagreement. When each citizen agrees to be guided in their public behaviour2 by the laws of the sovereign, according to Hobbes, each agrees not to let practical decisions be biased by the self, the present and the pleasurable. Dictatorship is supposed to embody public and impersonal judgement, and is supposed to be a means of reducing a plurality of conflicting security plans to a single co-ordinated plan. Not only does this plan rise above the selves of each of the many and the demands of the present time: 2

In his The Leviathan in the State Theory of Thomas Hobbes (1938) Schmitt criticizes Hobbes for undermining his own lessons about the extent and absoluteness of state power by limiting its scope with a distinction between interior acts of will and belief and outward behaviour. Schmitt and Hobbes are on the same side, however, in preferring decision to debate and unity to plurality in the body politic.

xiv

Preface

it rises above various illusions about destiny that come from shared myths and religions. Hobbes’s position, in fact, tells against three kinds of fundamentalism: the fundamentalism of an individual who would rather fight to the death than sacrifice his personal values, goals or self-image; the fundamentalism of a leader dedicated to realizing a possibly myth-based will of the people, as in Schmitt; and the milder fundamentalism of people and governments who would rather fight to the death than give up the continuity of a network of shared practices that defines them as a community when that community is threatened militarily. This milder fundamentalism (Chapter 5) does not necessarily have associations with mythic destinies, but it does accord great importance to a sort of continuity which confers unity and identity on a people that the state represents. According to this milder fundamentalism, defended in our own day by Michael Walzer, a supreme emergency is constituted not only by a large-scale threat to life but also by this combined with a threat to a long-established collective way of life. It does not take a dictator to safeguard such a way of life. A democratic government could do it. But, according to Walzer, such a government has to be prepared to go to great lengths in the defence of the continuity of practices that binds them together historically. ‘Going to great lengths’ means not only fighting to the death, but if necessary fighting ruthlessly – in defiance of the scruples felt by the government in normal times. According to Walzer, ruthless self-defence is legitimately open even to undemocratic governments defending communities that are strongly hierarchical and inegalitarian. This is not a book about Hobbes and Schmitt, or a book about Hobbes, Schmitt and Walzer. It is a book about right or permissible responses to private emergency and to an important subclass of public emergencies, a book that is informed by Hobbes, Schmitt and Walzer but which strikes out in a direction none of them takes. Public emergency is harder than private emergency to respond to, and, in the form of large scale violent conflict both within a jurisdiction and internationally, it gets most of the attention in the book. A modified Hobbesian approach to public emergency is developed and applied. It is a liberalized but very thinly liberalized Hobbesian position. This position stands up to criticisms of liberal emergency response made by Schmitt and is much more faithful to the unreconstructed Hobbes than Schmitt’s own views, influenced though they are by Hobbes. The thinly

Preface

xv

liberalized Hobbesian position is also superior to other positions, such as Walzer’s, that justify strong emergency response by reference to the value of community, as opposed to the values of survival and the avoidance of serious harm. What is more, it can be applied to problems of emergency response facing individual jurisdictions (Chapter 6) as well as the international order (Chapter 7). I agree with Hobbes that the state has to be divorced from fundamentalisms, even of the mild kind, and that the value of security defines some of the interests that the state must protect before others. However, Hobbes was wrong to think that government should be a permanent, authorized dictatorship for collective self-preservation. Permanent dictatorship is not a necessary form of government, because contrary to Hobbes, government is not a response to an emergency permanently in the offing when human beings live together. Hobbes makes too many forms of disagreement count as latent war, and he exaggerates the degree to which the sources of the disagreement are written into human nature. According to Hobbes, individuals are not cut out by nature for rising above the passionate pursuit of short-term gratification in the present, and the only way to avoid the conflict that results is for them to agree, out of fear, to be governed by a unified source of decision separate from themselves. Detachment from passions is accomplished by the delegation of decision making. Delegation to whom? Hobbes’s answer is, ‘A person or assembly willing to rule in the interest of the safety of the many’. According to Hobbes, the sovereign can be a human individual with passions, but if he is to do his job he has to detach himself from these passions in order to identify with the vital interests of his subjects. Hobbes does not think this is beyond a would-be head of state. So, even according to Hobbes, human detachment from the passions is sometimes possible. This is the key to a more sober Hobbesianism than is to be found in Hobbes. The concession that detached practical reasoning is sometimes possible for individuals, taken together with the implausibility of saying that all disagreement among subjects is incipient war, opens the way to a form of government that can be democratic to the extent that each citizen can detach himself from the practical biases that Hobbes identifies. So dictatorship falls out as unnecessary as a condition of a state that is organized around the value of security. Security can instead attract democratic deference.

xvi

Preface

A neo-Hobbesian position is possible, then, that escapes some of the implausibility of the Hobbesian original. But it, too, turns out to be unacceptable (Chapter 3). According to the neo-Hobbesian position, security is the organizing goal of a state contracted for by individuals whose citizenly decisions proceed from suitable detachment. Again, liberties are what law silently permits when law is tailored to what security requires. The problem is that security is not a credible organizing value of life in the state, and liberty is improperly conceived as what is permitted by law geared to security. Security is more of a constraint on an organizing value, namely that of leading one’s life autonomously, and liberty facilitates autonomy. Another way of putting the point is by saying that a liberalism with some concessions to Hobbes is better than neo-Hobbesianism. A version of liberalism that can make these concessions and that incorporates the right general understanding of practical reason is Raz’s (Chapter 3). What I call liberalism with Hobbesian sobriety is Raz’s liberalism, with some of its security provisions emphasized, and with some of its communitarian elements and some of its outlying claims about personal well-being subtracted. The essence of liberalism with Hobbesian sobriety (I sometimes use the phrase ‘Hobbesian sobriety’ for short) is that, while other things than security of life and limb can and do matter enormously to people, including – to take Raz’s examples – marriage, parenting, the practice of many occupations and professions and some of the things that are prized by fundamentalists of different kinds, security of life is a condition of many or most. Security thus makes sense as a fundamental – not necessarily the fundamental – value for a state in which an indefinite range of other things – organized by the value of leading one’s life autonomously – also matter. By the same token, things that are inconsistent with security are prima facie ineligible as things a state can be dedicated to. More precisely, where security would seem to a detached liberaldemocratic judgement to be undermined by a practice or an institution that matters to some people, then that is prima facie a good reason for suspending the practice or institution, sometimes by making it illegal. Though some of the things that conflict with security become visible only in emergencies, the fact that states should be designed so as to minimize these conflicts is relevant even in normal times. In this way emergency can be a guide to the design of the state outside periods of emergency. The normal institutional setup, including the scheme

Preface

xvii

of non-emergency law, has to discourage practices that contribute to collective insecurity of life and limb. These practices include familiar forms of criminality, but they also extend to fundamentalisms pursued by both individuals and governments. The case for liberalism with Hobbesian sobriety having been made in Chapters 2 to 5, the theory is applied in the final two chapters to state responses to domestic emergency – primarily in the form of counter-terrorism and public order offences – (Chapter 6), and international humanitarian intervention and the over-consumption that partly causes climate change (Chapter 7). Liberalism with Hobbesian sobriety takes over from Hobbes the idea that to be a good law, a law addressing a security threat has to be necessary: many illiberal prohibitions that have actually been introduced in the name of security – including several associated with the ‘War on Terror’ – may in fact be unnecessary or even self-defeating as security measures (Chapter 6). They may add nothing to already existing measures or create a backlash that itself increases insecurity. In recognizing this, liberalism with Hobbesian sobriety makes available a non-liberal basis for opposing security measures: namely the existence of a reason to think they would be ineffective or indirectly disabling of security. The democratic character of liberalism with Hobbesian sobriety, and its emphasis on detachment as a desideratum of good judgement, further constrain the introduction of the most illiberal security measures to meet emergency. Measures that seem inconsistent with the formal equality of citizens, measures that seem to be inconsistent in application with the equal status of citizens, are objectionable from the point of view of liberalism with Hobbesian sobriety, even though the value of equality before the law can be acknowledged by regimes that limit liberties. The sober Hobbesian account supports dirty-handed government action in the face of emergency when the threat is big enough and imminent enough, but because it connects emergency with threats to life and limb, it does not support dirty-handed action in defence of ways of life simply. On the contrary, it affords resources for critical detachment from ways of life outside periods of emergency, especially where they are illiberal or at odds with personal security. Again, although liberalism with Hobbesian sobriety calls for detachment on the part of the many who are co-citizens and subject to a shared coercive legal order, it does not call for cosmopolitan detachment. The

xviii

Preface

security of co-citizens matters more to a liberal government than the security of other people, and, when the security of co-citizens conflicts with cosmopolitan aid or foreign humanitarian intervention, that is a reason for omitting that aid or that intervention. This means that liberalism with Hobbesian sobriety conflicts with the non-statist ‘human security’ approach that has become influential in some international institutions and among some academic writings on international relations. This conflict is not necessarily to the discredit of an approach influenced by Hobbes, since ‘human security’ seems to inflate or revise the concept of security in ways that are objectionable (Chapter 7). Sober Hobbesianism also applies informatively to two kinds of emergencies in international relations: militarized repression or expulsion of some of a foreign population by its government, and the evolving global climate change emergency (Chapter 7). I started thinking about emergency in writing a previous book, Moral Theory and Anomaly.3 There I took up the question of whether moral theories and the conventional morality that they systematize are sometimes inapplicable. Emergencies fit in with that topic, because they can seem to be situations in which conventional morality lapses, and in which systematizations of conventional morality cease to be applicable in turn. The present book gives reasons for thinking that emergencies are entirely accessible to conventional morality and moral theory, while also admitting that they engage a section of conventional morality and moral theory whose applications are not every day. Emergency often involves threats to life and so engages with precepts about saving life and not taking life that do not have to be applied routinely in well-ordered, prosperous and peaceful places. But the fact that they do not have to be applied routinely does not mean that their overridingness cannot be recognized even in normal times. Emergencies do not typically create a moral black hole in which suddenly everything is permitted. Still less do emergencies operate in such a way that things done in them are neither right nor wrong. Instead, emergencies point to the priority of saving life and minimizing serious harm among the reasons for action on which morality concentrates. 3

(Oxford: Blackwell, 2000).

Acknowledgements

Portions of Chapters 1 and 3 previously appeared in my ‘Morality and emergency’ Proceedings of Aristotelian Society 103 (2002) pp. 21– 37; and ‘Schmitt, Hobbes, and the politics of emergency’ Filozofski Vestnik 26 (2003) pp. 223–242. Sections of Chapter 5 are to appear in L. Foisneau, J. C. Velasco Arroyo, C. H. Hiebaum (ed.), Open Democracies (Hamburg: Springer, 2013). Many people have been exposed to material from this book since 2005. Of these I wish to thank Lou Cabrera, John Guelke and Jethro Butler for going through previous versions of the whole typescript, as well as a number of anonymous referees. Among audiences I would like particularly to single out that provided by the staff seminar at the University of Gothenburg in 2006.

xix

1

Private emergencies and institutions

Moral training and behaviour in keeping with it are geared to the normal case. Most of us have been taught not to lie, but as preparation for the sort of life in which telling the truth does not put one’s life at risk. We are told to keep our promises, but against a background in which breaking promises does not normally make the difference between death and survival. Where situations facing agents overturn these understandings, it is not so clear what they ought to do. Thus, no one would criticize an Albanian in Kosovo for having lied about his ethnic background to a Serb soldier during the Balkan conflict; and no one would blame someone who has promised to look after someone else’s groceries for eating them when she finds herself stranded and disabled far from any help. In extremis, ordinary moral obligations either lapse or may excusably be broken. Doing the right thing is supposed to interfere significantly with well-being or survival only exceptionally, and moral training does not normally treat cases in which there is a risk of suffering violence or death in the same way as situations in which the costs of doing the right thing are negligible or non-existent. A hero or a saint might die before breaking an ordinary moral obligation, even in extremis, but that would not show that the ordinary moral obligation had to be discharged, even in extremis. Someone who failed to do so could be blameless. My interest in emergency is an interest in a special case of a departure from what moral training and conventional morality in our sort of community take as normal.1 An emergency is a situation, often unforeseen, in which there is a risk of great harm or loss and a need to act immediately or decisively if the loss or harm is to be averted or minimized. There are important differences between, on the one hand, public emergencies – emergencies facing whole states or large numbers 1

This theme is anticipated in my Moral Theory and Anomaly (Oxford: Blackwell, 2000), esp. pp. 182–186.

1

2

Private emergencies and institutions

of people, which are usually the responsibility of public agencies and their officials – and, on the other hand, emergencies confronting individuals in a private capacity. I shall start with an emergency that crops up in an individual life, where the one who has to do something is a person acting in their own right or in a private role and not as an official. I shall discuss criteria for excusing and not excusing normally wrong acts done to face emergencies in private life, and with how far it is urgent to prevent or avoid emergencies that can be prevented or avoided. I shall argue that not every kind of private emergency is morally necessary to avoid, even where doing so is quite easy. This relative lack of urgency is connected to the presence of, or need to develop, public institutions and practices that ‘domesticate’ emergencies – make their ill effects manageable. If the public institutions exist, they tend to reduce the dangers faced personally by individuals in emergencies. If they do not exist, then people need to face danger in a controlled way in order to create them, keep them effective, or make themselves able to cope without them. If no one took any life-threatening risks, that would not eliminate emergency, and it would disable emergency response. Prevention and avoidance are clearly obligatory not in relation to occasional or disciplined risk-taking on the part of individuals, but in relation to foreseeable, large-scale emergencies facing a citizenry or population. This is because of the numbers of lives threatened, the moral priority of life-saving, the likelihood of overwhelming emergency services, if they exist, and the status of the right to security on the part of citizens. Public emergencies not only threaten lives in their own right: they multiply private emergencies – with their moral and other demands on the sometimes very helpless people who survive them. Among the moral demands is that of playing God in personal decisions about rescue where not everyone can be helped. The conclusion I will eventually reach in this chapter is that in order for the moral demands of even private emergency response to be tractable, public institutions in general and public institutions for public emergency response in particular are morally compulsory. Because of the role of institutions, the ethics even of private emergency engages emergency politics – the theory of which institutions are needed to address different kinds of large-scale threats to large numbers of people. Public emergencies will get the lion’s share of attention in this book. But I begin with private emergencies.

Private emergencies and excusable wrongdoing

3

Private emergencies and excusable wrongdoing Emergencies are both practically and theoretically challenging. To begin with theory, emergencies seem to create exceptions to moral precepts, and moral precepts are sometimes thought to be distinguished as a class by admitting of no exceptions. They are sometimes thought to be categorical or unconditional and addressed to all rational agents. That way of understanding moral precepts may be open to the charge of hyper-rigorism, but it is at any rate familiar in moral philosophy, with no less respectable an advocate than Kant. On Kant’s view, if it is wrong to lie, then no one ought ever to lie, not even to protect an innocent person from a murderer.2 Kant associated immorality with putting the satisfaction of one’s desires or the pursuit of one’s own happiness before duty, and with taking oneself to be somehow exempt from requirements that everyone else is under. Consistency and universality are written into morality, according to Kant, and help to explain its inescapability. Attempts to reduce its universality to mere generality, or to make the demands of morality conditional on other things, are, for him, invitations to immorality. What about the challenges that emergencies pose for moral practice? At least three such challenges can be identified. First, emergencies present agents with life and death decisions – the most serious that arise in personal morality. Although many agents living in wellresourced, well-ordered countries never face such decisions personally at all, or face them only because they have chosen to enter certain professions, life and death decisions can in principle crop up in any life. Second, emergencies present agents with decisions that have to be made urgently. Third, they present a heightened demand for doing something effective, not merely for doing something, and doing it now. The need to be effective in a short time makes agents less discriminating about means; so, in a good cause, things can be done that, in different circumstances, the very same agents would have considered flatly wrong. To fix ideas, let us consider an example. An elderly man and his adult son are out for a walk after a visit to a pub. The elderly man has a heart condition and starts to experience chest pains. There is no 2

On the Supposed Right to Lie from Altruistic Motives, Akademie, ed. vol. viii, p. 427.

4

Private emergencies and institutions

quick means of summoning an ambulance, which may in any case take too long to get there. The son breaks into the nearest car, jump starts the engine, and drives his father to the nearest accident and emergency department, breaking the speed limit dangerously, and nearly running over a child along the way. How are we to judge the agent in such a case? Probably not unsympathetically. Admittedly, he has damaged and stolen other people’s property and nearly killed someone, but only because he thought he had to act quickly to save his father’s life. What is more, he has succeeded in getting his father to people who are in a position to save his life if the chest pains are a heart attack. What is even more, he has shown presence of mind and ingenuity in a situation where other people might have panicked or succumbed to indecision. Far from having done anything wrong, it might be said, he has done only what is necessary in an emergency. This reading of the example is far from condemning the son’s actions, but it does not imply that those actions are beyond criticism. If a child had been killed in the attempt to rescue the father, then the whole episode would probably count as a tragic failure even if the father survived. The son might even have deserved punishment. The excusing power of emergency, then, is not absolute. It seems to run up against a limit when a life is taken in order to save a life or lives, a point that will be addressed at greater length later on in this chapter. But conceding this much does not take one very far back into Kant’s territory. For example, if the son had had to lie in order to get the car, instead of breaking into it, that would have taken very little away from a successful rescue, and would have added very little material for blame to a failed rescue. The reason is that the lie is a one-off, that it is produced in a one-off good cause, and that the bad of a one-off lie is typically much smaller than the bad of anyone’s losing their life. That said, there are types of factor that, intuitively, seem to reduce the excusing power of emergency even when rigorism is completely abandoned. In the example before us, it makes a difference whether the chest pains were an emergency that, as the phrase has it, was ‘just waiting to happen’. Suppose that the father has a history of heart problems. When he complains of chest pains after the visit to the pub, they are at first dismissed as indigestion by the son. Suppose that the son had been asked by the father to bring along a car, in case the father started to feel unwell, and the son could not be bothered to find a parking space, so that he had no transport when there was a sudden

Private emergencies and excusable wrongdoing

5

need for it. Then perhaps he is not so admirable after all. He made things worse by not having been prepared. In general, the more an emergency is foreseeable, and preventable by morally harmless and undaunting precautions, the less the ad hoc wrongdoing involved in coping with the emergency is justifiable or excusable, all things considered.3 This principle explains judgements in the version of the example where the son is casual about the father’s heart condition, and it explains our unwillingness to excuse totally those people whose presence of mind in an emergency is counterbalanced by their bringing about the emergency. Someone who ignores weather advice to climbers to stay off a dangerous peak and then predictably gets into life-threatening trouble when he climbs that peak probably places an unjustifiable burden on the rescue services, even if he has to display immense courage and resourcefulness to get himself to a place where the emergency services can help him. There are cases that straddle the boundary between emergencies waiting to happen and blameless action in a morally tainted environment. A whites-only neighbourhood will sometimes be dangerous for non-whites entering it; however, many of the non-whites in the neighbourhood only mind their own business while they are there. Is the fact they simply enter the area, when they know what kind of neighbourhood it is, an emergency waiting to happen? If they are assaulted, 3

The distinction between justification and excuse in criminal law defences is relevant here. There is an excuse for an action if, though contrary to the law, the agent could not help performing it. An action is justified, on the other hand, if, even though it is contrary to law, and the agent is fully responsible, it is for a highly valuable social purpose, and therefore not to be punished. ‘I only did it to save a life’ can be such a reason even where what is done is criminal. My category of excusable action is closer to justified action in the legal sense than the category of action for which there are excuses in law. What I am getting at is a type of action that, though normally morally wrong relative to its typical purposes, can exceptionally be done for some morally good and indeed overriding purpose. People often lie to save face, or escape condemnation they deserve, or to manipulate others for their own purposes. When, atypically, a lie is told only to save a life, and the lie could not otherwise be avoided, it does not cease to be a lie. It may even achieve its good purpose by manipulating someone. In this way it has some of the character of the typical lie, including part of what makes a lie bad. But the lie is excusable because the obligation to save life overrides the obligation not to manipulate someone, when manipulation is a means of saving a life. For a general account that is broadly congenial to my approach, see Marcia Baron, ‘Justifications and excuses’ Ohio State Journal of Criminal Law 2 (2005), pp. 387–406.

6

Private emergencies and institutions

or face an attack, do they contribute to the emergency? In such a case it is what taints the environment that makes for the emergency waiting to happen. The normally blameless action of walking along minding one’s own business is, if tainted at all, tainted by what taints the neighbourhood – racism. If a non-white entering a whites-only area is on its own an emergency waiting to happen, it is an emergency for which the preventive treatment is whatever cures racism, rather than avoiding action on the part of non-whites. It is a borderline case of an emergency just waiting to happen. When I speak in what follows of ‘emergencies waiting to happen’, these border-line cases will be disregarded. Emergencies waiting to happen in the preferred sense can be distinguished from unexpected emergencies and from sought-out emergencies. If emergencies just waiting to happen excuse less than wholly unexpected emergencies excuse, then emergencies that are sought out excuse least of all, if they excuse anything. Someone who, for the thrill of it, only climbs mountains when climbers are warned strenuously against it, and who frequently has to call in the rescue services; someone who, for the thrill of it, penetrates no-go areas in periods of war but then feels no scruples about asking others to face great danger in order to get him out; such a person probably does not act excusably at all, even though he will lose his life if he does not call others to the rescue. Emergencies that no one could reasonably have expected – let me refer to them simply as ‘unexpected emergencies’– are at the other end of the spectrum. Why do they excuse as much as they do, morally? For at least two reasons. First, avoiding or minimizing significant harm is morally important, and emergencies are cases where significant harm has to be avoided or minimized. Second, the importance of minimizing significant harm is usually reflected in the appropriateness of longer and more careful practical deliberation than usual – precisely what unexpected emergency rules out. In unexpected emergencies one is usually forced to decide quickly when the stakes are high. So there is less to be said against whatever it occurs to the agent to do – so long as what the agent does makes sense as a means of rescue or minimizing harm. Again, the usual mechanism for deciding quickly is disabled in unexpected emergencies. The usual mechanism – habit – would probably lead to bad choices. One’s habitual aversion to breaking into things and stealing, for example, is just what shouldn’t be engaged when one has to decide how to get treatment for someone else’s heart

Emergencies and moral latitude

7

attack, and breaking and entering a car provides a quick solution. One’s usual inclination to run a mile from blood and gore is just what shouldn’t be acted upon where there is a chance of being helpful at the scene of a road accident. Unless an emergency is of a domesticated type,4 one has often to think quickly and in an unaccustomed way in order to respond to it. Since these things are very difficult, it is excusable to be ineffectual in an emergency. The more effective one is, the greater the achievement, and the more that can be excused in the means chosen.

Emergencies and moral latitude Is it morally urgent for emergency to be avoided where it is predictable, and domesticated where it is not? The same factors that give emergencies their excusing power make them likely to produce major harm if they are not avoided, and it seems reasonable to claim that major harm that can be avoided altogether (as opposed to minimized after the fact) should be. Furthermore, there is something about the prospect of an overwhelming emergency that may be corrosive of conventional morality, and that may require potentially overwhelming emergencies in particular to be domesticated. The greater the harm and the more imminent it seems, the more it may appear to an agent caught up in an emergency that anything goes. Not just anything that may avert the harm, but anything the agent can do to make it less bad for himself. This is what I mean by the corrosiveness of overwhelming emergency. A man who dressed as a woman or as a crew member in order to board 4

Not all unexpected emergencies are equally daunting, because in many countries there are publicly recognized routines for dealing with standard emergencies, and some unexpected emergencies are standard. Lifeboat drills on ships; fire drills in schools; first-aid training; the practice of giving safety instructions to passengers at the beginning of flights: these keep us from being mired in dither if the worst happens. In many developed countries, all of these drills co-exist with construction and maintenance standards that soften the effects of the relevant emergency and that lengthen the time available to reduce the danger or get away from it. Taken together, the drills and standards work to domesticate emergencies. Although they do not take the threat of harm out of emergencies, they keep us from being at a loss in the face of them. Designing public buildings with lots of fire escapes does not necessarily make the occurrence of a fire any less of a danger, but having the fire escapes and going through fire drills makes available a mechanism for dealing with at any rate a medium-sized fire more or less automatically.

8

Private emergencies and institutions

a lifeboat on the Titanic probably did not do all he could to maximize the smallish-looking chances of survival of the women and children, but perhaps that did not seem to matter when his own prospects were so bleak. If any of us were suddenly to be told that a violent tidal wave was about to produce an overwhelming flood, or that a giant piece of space debris was days away from striking the earth and devastating it, it might seem as if anything gratifying that could be done in the time left was permitted, no matter how many scruples that gratifying thing might normally engage. In what follows, I shall first investigate the question of whether overwhelming emergency is urgent to prevent because it seems to license a radical permissiveness. I shall express scepticism about this suggestion. Then I shall come back to the question of whether the large-scale harm threatened by emergency makes it compulsory to avoid. My answer is, ‘Not necessarily’, if the emergency is private and small scale: facing emergencies can be part of becoming personally more capable and useful; it can also be part of the process of domestication. Even engaging in activities that are dangerous enough to be mistaken for cases of asking for trouble may be excusable or justified if it increases private and public capability for emergency response. The strength of the case for avoiding emergencies that can be avoided increases with the numbers of lives threatened and the scale of injury that they bring with them. At the same time, the requirement that large-scale emergencies be avoided by public institutions, and not by the heroic efforts of individuals or groups, becomes inescapable. In this sense the ethics of emergency seems inseparable from politics, and not just emergency politics. Let us go back to the tidal wave and the prospective annihilating collision of the earth with the space debris. If one knows the end is virtually certain to be near, one may clutch at any pleasure while one can and perhaps feel thoroughly justified in doing so. And emergencies like the tidal wave or the impending collision with the space debris impose such death sentences on large populations. Whether one actually is justified in taking the corresponding liberties is a hard question to answer if the end of the world really is nigh, or is reasonably believed to be. It must depend on the liberty being taken. Credit card fraud or theft before the collision with the space debris takes place is one thing; rape or torture is another. But much of everyday bourgeois morality could seem pointless if the emergency were imminent enough, enveloping enough, and final enough. The moral black hole that some

Emergencies and moral latitude

9

emergencies can threaten to suck us into may seem even more repulsive than the desperate measures that emergencies justify or excuse when desperate measures are a way of minimizing the harm they bring. So perhaps emergency is urgent to domesticate twice over: first, because it can produce a black hole; second, and more mundanely, because it is better to avoid the situation of having to cope, probably hurriedly and ineffectually, with a significant harm. I doubt that every kind of unexpected emergency is morally urgent to try and avoid, and I doubt in particular that unexpected private emergency is always the site of a black hole. By a ‘black hole’ I mean primarily a situation in which many or all interacting agents at a place and time lose the scruples inculcated into them for behaviour in normal times. They behave as if under the policy that everything is permitted. Since emergencies appear even from the standpoint of theory to generate permissions or exceptions to the moral injunctions of conventional morality, the phenomenon of the black hole cannot really be detached from the theoretical question of whether, even in extremis, the reasons for doing what morality requires still have authority. I shall suggest that the danger of the black hole and a scepticism about the authority of moral reasons in desperate circumstances are both likely to be exaggerated. Fears of a black hole may make sense where what is in question is an overwhelming public emergency, as when a state is in the midst of an unexpected all-out military attack. In that case it might seem to an agent that there was no alternative to a policy of every man for himself, or no real objection to a policy of anything goes. If that is so, then there is an important reason for preventing attack or being equal to it – apart from the loss of life it leads to. Again, if a state of all-out war is what we would be reduced to by the collapse of political institutions, as in Hobbes’s prototype of the general emergency, then perhaps what has to be seen to before anything else is the security of those institutions, which may involve elaborate mechanisms for defending the economic, transportation, and communication systems, and not only the channels through which legitimate political authority flows. It may well be more urgent to devise these mechanisms – and therefore domesticate general emergency – than to do anything else, a point I shall return to. But many smaller scale emergencies are not like this, and the moral danger they pose is not that of encouraging the idea that all things are permitted or that it is every man for himself.

10

Private emergencies and institutions

Legal cases that ostensibly occasion a necessity defence against a charge of murder are relevant here. In one of the most famous, R v. Dudley and Stephens,5 three men and a boy were cast adrift in an open boat with very little food and water. After 18 days, when all were starving and the boy was the closest of the four to death, two of the men killed him, and all three fed on the body. The third man had previously pleaded with the other two not to kill the boy. Four days later, and nearly on the point of death, the three men were rescued. Though the jury found that they could not have survived except by their acts of cannibalism, the judgement in the case was that the killing of the boy was not necessary and that it therefore amounted to murder. According to the decision of Judge Coleridge, the boy was killed because he was the weakest and offered no resistance, but any of the men was appropriate to kill if the boy were, Judge Coleridge held. If the decision to kill was always to be left to the subjective judgement of the people affected in a case where all but one could survive, the judgement continued, the weakest would have the least good chance, when what they deserved was an equal chance. Again according to the judgement, it was possible, in some sense, that all three could have been picked up before any died, so that it was unnecessary for anyone to be killed. The judgement seems to impose a very high standard of reasonableness on starving men, and if the question is not the legal one of the classification of the killing as murder but the moral one of the excusability of the killing, I think that it was excusable. On the facts the two men who killed the cabin-boy did not resort to the desperate measures they took unduly quickly or casually, nor did they immediately hit upon a plan of killing the weakest in the group. They had proposed drawing lots. In any case, it is asking a great deal for someone in extremis to view his own death as no more of a misfortune than that of the other people in the boat with him.6 Things stand differently, of course, if what is at stake is not survival itself but mere freedom from hunger. But after 18 days, it is plausible that survival was indeed 5 6

[1884]Q.B.D. 273. There is apparently a tradition in English law of regarding the killing of the innocent, even in the cause of saving a loved one, as legally indefensible. Hale’s Pleas of the Crown (1736) and Blackstone’s Commentaries on the Laws of England (1857) both state that a man under duress ought rather to die himself than kill an innocent. See www.lawteacher.net/Criminal/Duress%201.htm.

Emergencies and moral latitude

11

at stake. This does not seem to be a case of everything being permitted or of the two men having done what they did out of convenience rather than desperation. It is true that the behaviour of the third man shows that more scrupulousness was possible. But the question before us is whether the process leading up to the killing of the boy showed no scruples at all on the part of the two who killed him. The answer seems to be ‘No’. The same conclusion seems to fit where normally forbidden steps are taken not to save oneself, but others, in an emergency.7 The intuition that emergency strips people quickly of their moral scruples or inhibitions does not seem to be borne out in all real cases of private emergency.8 By the same token, it does not seem urgent to domesticate private emergencies on the ground that they necessarily grease a slippery slope or create a moral back hole. More generally, the following can be said. Even where normally forbidden things are done in emergencies to save lives, the normally 7

In Justification and Excuse in the Criminal Law (London: Stevens and Sons, 1989), J. C. Smith gives an example drawn from the disaster involving the sinking of the ferry, Herald of Free Enterprise at Zeebruge: At the inquest . . . evidence was given by one of the passengers . . . , a corporal in the army, that he and a number of other people, apparently dozens of them, were in the water and in danger of drowning. But they were near the bottom of a rope ladder which they might climb to safety. On the ladder, petrified with cold or fear, or both, was a young man unable to move up or down. No one could get past him. The corporal shouted at him for 10 minutes with no effect. Eventually he instructed someone else who was nearer to the young man to push him off the ladder. The young man then was pushed off and fell into the water, and, so far as is known, was never seen again. The corporal and others were then able to climb the ladder to safety. At the coroner’s inquest, the coroner pointed out that there was no evidence as to the identity or eventual fate of the young man: There simply isn’t any evidence [that he man on the ladder was killed], but even if there were, I would suggest to you that killing in a reasonable act of what is known as self-preservation, but also includes, in my judgement, the preservation of other lives, such killing is not necessarily murder at all . . .

8

Even if it is murder, it seems morally excusable, because it was only done when other means of removing the man from the escape route had been tried, and because it was done not to save the life only of the one who pushed the ladder man into the water, but to clear an escape route for other, no less innocent victims of the ferry disaster than the petrified figure on the ladder. See David Alexander, Principles of Emergency Planning and Management (New York: Oxford University Press, 2002), p. 226.

12

Private emergencies and institutions

forbidden things are not necessarily done under the general policy that anything goes. Instead, the value of life or of warding off great harm asserts itself, and people can do normally forbidden things to save life or avert great harm. Someone who eats some else’s groceries only to ward off extreme hunger, or who breaks into a car only to drive a mortally ill person to hospital, is respecting the moral injunction to save life, and the morally defensible policy of making the life-saving action take precedence over others where they conflict. Such an agent is not doing whatever he feels like doing or whatever he thinks will benefit himself before others. So there is not necessarily a break from conventional morality in emergency situations. Instead, the normally latent overridingness of life-saving, and of preventing or minimizing great harm, becomes salient, and people take shortcuts over moral territory that conventional morality normally puts out of bounds. The shortcuts do not constitute a breakdown of morality but reflect instead the precedence given by morality to the sort of value that is most at stake in emergencies. It is true that people sometimes act to save life by shortcuts when the shortcuts are not required. But this is not an argument against ever taking shortcuts, because in some cases, a legitimately overriding end can be pursued in no other way. Now in the cabin-boy case, people took a life to save their own lives. Does this mean they behaved ruthlessly or self-indulgently? No. They did not take advantage of an emergency situation to satisfy a long-suppressed hankering for experience of cannibalism. Nor did they kill the cabin-boy for some reason other than survival, say hatred or greed. It is true that they put their own survival before the cabin-boy’s. But everyone involved was reasonably believed to be on the point of death. The cabin-boy’s companions were desperate, and they thought the cabin-boy’s survival was in some sense (the sense embodied in a willingness to draw lots) as valuable as theirs was. Theirs was a case in which the value of life might have been better respected by everyone’s waiting to die rather than taking a life. But the value of life was not ignored by the plan of drawing lots, or even by taking the cabin-boy’s life only as a last resort, when it was reasonable to believe he would die anyway. Even here the writ of ordinary morality still ran.9 9

In Ethics for Disaster (Lanham, NJ: Rowman and Littlefield, 2009), p. 45f Naomi Zack follows Jonathan Bennett in connecting the survival of ordinary morality in emergency situations with the operation of sympathy and the

Emergencies and moral latitude

13

Is it possible to draw any general principles from the cases we have been considering? The following seems plausible: ϕ-ing in an emergency is wrong if ϕ-ing is normally wrong, but it is excusable if ϕ-ing is reasonably thought by the agent to be the only way to save life or prevent great harm in an emergency, and the agent only ϕ’s in an emergency for the sake of saving life or preventing great harm.

This covers the cabin-boy case and the cases constructed at the beginning of the chapter. It implies that conventional morality is applicable to emergencies, and it restricts revisions of the judgements of conventional morality even in emergency situations. It gives some support to the man in the Titanic who does not think that women and children deserve to survive more than he does, though it still leaves open the thought that it is wrong for such a man to take away from the far more vulnerable a head start in the fight for survival. Where the vulnerability is more or less equal, things are not so clear. A new principle, however, is needed to address the most extreme sort of emergency. Consider again the example of an asteroid or space debris on the point of devastating Earth. Although there are efforts currently being made in America to prepare for even this sort of disaster, it seems to me to defy any possible human domestication. If it is bound to defeat us, and we are caught up in it, facing the destruction of the world, are all bets off? Does it start to be true then that anything goes? No. An impending collision with an asteroid would not make inapplicable or pointless all of conventional morality, but it would certainly undermine some institutions with moral significance: long-term debt repayment, will making, polices of eating and drinking geared to the assumption of a long future ahead of one and so on. In particular, forgetting about one’s credit card bill and mortgage payments, which is wrong for several reasons in non-emergency situations, might cease to have any moral importance at all in the face of the advancing asteroid. In general, ϕ-ing in an emergency is not wrong if emergency conditions undermine an institution on which ϕ-ing essentially depends, even if ϕ-ing is normally wrong. possession of virtue. Although that account may fit some cases, it does not fit this one, as the use of the device of the lottery shows. The use of that device is not, however, contemptible.

14

Private emergencies and institutions

‘Defaulting on one’s debt payments’ is one likely substitution for ‘ϕ’; there will be many others – all affected by a sudden huge reduction in the horizon of survival. Still, neither of the principles outlined is very permissive. The cannibal who sees his chance in the boat with the cabin-boy cannot only be indulging his taste for human flesh if his action of killing the cabin-boy for food is to be permissible. And many acts, such as rape for the sake of personal pleasure, or torture or intimidation for the same reason, are left nowhere near the threshold of permissibility. On the contrary, these things seem to remain wrong no matter what.

Emergencies and harm So much for the thought that in emergencies anything goes and that they have to be avoided in order to keep one’s distance from a moral black hole. What about the other ground for supposing that it is urgent to domesticate emergencies: namely that emergencies often threaten significant harm and that because significant harm is always urgent to prevent, steps should be taken to keep well away from emergencies? Even this suggestion is disputable. After all, certain leisure pursuits, even when not engaged in recklessly, place one at the top of high cliffs or in the midst of raging rivers – dangerous places if any are. Training and the care taken by agents on each occasion can bring it about that not every mountaineering outing and not every white water rafting holiday is an emergency waiting to happen, but surely there is no clear borderline between an emergency waiting to happen and the responsible pursuit of pastimes with significant danger in them. A proof that avoidable and significant dangers ought to be avoided threatens to outlaw not only emergencies waiting to happen, but any activity in which significant danger is present but contained. That conclusion seems much too sweeping to be acceptable. Indeed, from a certain angle, the apparent need to avoid emergencies waiting to happen can seem a contemptible surrender to timidity, gutlessness, or the inertness of the couch potato. In other words, it might be thought that what ties together the imperative of domesticating general emergency and of preventing emergencies that are waiting to happen is the repulsiveness for ordinary morality of facing life in any form that is bigger than we are. On this view, emergency can be understood as untamed life or nature breaking out of the confines

Emergencies and harm

15

erected by human prudence, and, instead of being the outlying case for moral guidance, with the safe and everyday occupying the centre of our attention, emergency is what we each ought to aspire to be equal to. So we should not avoid it, and perhaps should live life closer to it. This position seems wrong to me, but it contains a good point. It seems wrong, because it conflicts with the intuitive distinctions between unexpected emergencies, emergencies waiting to happen and soughtout emergencies. Indeed, it turns upside down the intuitive valuation of the sought-out emergency as the case that excuses least or nothing. But it is right in this sense – that emergency can and ought to be domesticated only within limits. There is an important place in human life for a capacity to face danger ad hoc, and some of the risky recreations develop this capacity. That does not mean that just anything dangerous is in place in the pursuit of a dangerous recreation. Someone who mountaineers while roaring drunk or skydives without much attention to the condition of his parachute is adding danger extraneous to what the skill of mountaineering or skydiving is designed for, or disabling himself for confronting the danger proper to mountaineering and skydiving. But the arguments against exposing oneself to the extraneous dangers are not arguments against pursuing the dangerous recreations themselves. It is not as if pursuing the dangerous recreations themselves is disabling. On the contrary, the skills required to pursue them can make one more confident and disciplined in the rest of life, not to mention physically stronger, and more useful to others who need help. The case of dangerous sports, then, does not abolish, or erode unduly, the distinction between emergencies waiting to happen and sought-out emergencies. But it does show that what is normally an emergency waiting to happen – placing oneself at the edge of a cliff – is not always one. There is probably no skill relative to which mountaineering while drunk is part of testing that skill, and so mountaineering while drunk is always a sought-out emergency, the kind it is inexcusable to bring about. In general, if a danger cannot be met intelligibly by an intelligible skill, it is an emergency waiting to happen and is not justified by the good of becoming a more capable and resilient human being. If the danger can be met by a skill, on the other hand, it may be justifiable to do something that carries that danger despite its appearing to be no more than an emergency waiting to happen, and despite the fact that the relevant skill can never be entirely safely exercised.

16

Private emergencies and institutions

The fact that skills that enable one to face danger are valuable does not mean that there is nothing to be said or not much to be said for the domestication of emergency. On the contrary, cultivating the skill is itself a way of domesticating an emergency. It is a way of making emergency easier to cope with even when it is not preventable. In the form it takes when it is a kind of self-help, the domestication of emergency can also help others, for it can reduce the need for dangerous rescue. There is scope for this sort of domestication in ordinary life and not only in the sphere of extreme sports. When one keeps a first aid box at home, one domesticates certain kinds of medical emergencies. When one installs smoke alarms, one domesticates a fire emergency. When one carries an extra tyre or other spare parts, one domesticates the emergency of car breakdown in a remote area.

Ethics for private emergencies Within the context of which moral theory does the preceding discussion make sense? It should already be clear that no simple deontological or consequentialist theory will play the required role. Actconsequentialism does not fit the principles, since it will often entail that some of the actions that the principles say are merely excusable are flatly right. For example, breaking into the car to get one’s father to the hospital is likely to be flatly right according to act-consequentialism. Rule consequentialism arrives less quickly at the judgement that it is right, acknowledging the cost involved in breaking the rule that normally people shouldn’t damage property. But in the end rule utilitarianism will hold that where one cannot do both, acting to save a life is more important than refraining from breaking into a car. My approach is intended to square with the idea that ordinary morality does not go into abeyance in emergencies: it does so by classifying responses to emergency that violate precepts of ordinary morality sometimes as wrong but excusable. The approach is more permissive than some versions of deontology, since it insists that the need to save life and prevent great harm can be overriding, even where acting accordingly involves behaviour that would conventionally count as immoral. As we have seen, not every deontologist agrees that lying to save a life is excusable, or that violating one moral precept is less wrong than violating another. So-called threshold deontology makes room for departures in an emergency from and ordinary morality that

Ethics for private emergencies

17

is normally supposed to be exacting, and so threshold deontology is in keeping with the approach followed here. But it seems to be ad hoc and seems to confine deontology to non-emergency situations, abandoning the idea that moral precepts are unconditional and universal in application. A theory that appears to make room for my sort of approach without the appearance of accommodating emergencies ad hoc is Scanlon’s contractualism.10 According to Scanlon, actions are wrong if they are prohibited by a principle no one could reasonably reject, and the lifeprotecting and aid-promoting precepts of conventional morality are such that no one could reject them. Grounds for rejecting principles in Scanlon’s account are the burdens such principles impose on particular agents, but the weight of the burdens is diminished, and the scope for rejectability correspondingly limited, if different choices on the part of the agent could have made the burdens less. There is a connection between this way of thinking and what I claimed was the relative intolerability, intuitively, of a rescuer’s dirtying his or her hands to meet entirely avoidable emergencies. The fact that one gratuitously puts one’s own life in danger weakens one’s ground for rejecting a principle that permits rescuers to save someone else’s life before one’s own. The fact that one gratuitously puts one’s own life in danger also weakens one’s basis for rejecting a principle that outlaws conventional wrongdoing even where one’s own life depends on it.

Not playing God We introduced the question of whether the domestication of emergency is morally required by asking whether it is always necessary to prevent a preventable emergency. The fact that emergency makes significant harm imminent is one reason for thinking that prevention is required, where it is practically possible. But harm is not all there is to it. There is also the fact that emergencies sometimes confront agents with conflicting demands for rescue, that is, demands that cannot simultaneously be met. Although the cabin-boy case shows that 10

What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998). Parfit’s approach in On What Matters (Oxford University Press, 2011) is similarly an attempt to rise above the deontology/consequentialism distinction.

18

Private emergencies and institutions

in real emergencies individual agents can find ways of giving lives in danger equal weight – say by drawing lots – one can also understand, and perhaps even admire, agents who recoil at deciding between lives at all, and who refuse to do so. These agents do not want to play God at the best of times, let alone at the worst of times. For them it is one thing in an emergency situation to take a life in self-defence: it is quite another to have to decide on the survival of others when one’s own life is not threatened at all. Highly artificial cases along these lines are familiar from the huge philosophical literature on the so-called trolley problem.11 In a trolley problem, an agent not personally at risk of injury or death is put in a position to save several others, who will die if nothing is done. Agents in trolley cases are always relatively resourceless individuals – they can save lives only by throwing the switch, and potential victims are always entirely helpless. In the trolley world there are no rescue institutions, and the persons typically in need of rescue are inert. What the agent has to do is well within his capacities: throwing a switch to divert a runaway trolley. What makes this situation a moral problem is that throwing the switch victimizes someone else: an innocent person in the path of the diverted trolley will be killed if the others are to be saved. Throwing the switch costs one innocent life but saves several others. What is more, the agent foresees this cost. Should he throw the switch? In the trolley problem literature, the principal issue is usually that of whether the utilitarian answer to this question – that it would be wrong for the agent not to throw the switch – is intuitively acceptable. In the context of the present discussion we already have in operation a principle that implies that it would be excusable for the agent to throw the switch knowing that someone will die. Utilitarianism, on the other hand, implies that it is not merely excusable to throw the switch, but wrong not to. It is true that rule utilitarianism arrives at this conclusion while giving weight to the consideration that normally killing is to be omitted, but this rule permits exceptions in cases of life-threatening emergency, and the trolley problem situation is such a case. In further variations on the trolley case also commonly discussed 11

The term is due to Philippa Foot. See her ‘The problem of abortion and the doctrine of double effect’ in her collection Virtues and Vices (Oxford: Blackwell, 1978). See also Judith Jarvis Thomson ‘Killing, letting die, and the trolley problem’, The Monist 59 (1976) 204–217 and ‘The trolley problem’, 94 Yale Law Journal (1985) 1395–1415.

Ethics for private emergencies

19

in the literature, the agent can save the several only by going and placing an innocent bystander in harm’s way. Intuitively, this is worse than merely omitting to rescue an innocent bystander, or even doing something that foreseeably causes a death without that death being aimed at. But utilitarianism tends to treat the two the same. According to the principles already introduced, even action that goes disastrously wrong in an emergency can sometimes be excused, because the conditions for practical deliberation in emergencies are usually so unfavourable, and because even an inept action done for the sake of saving a life or many lives is not contemptible. Against that background, throwing the switch is excusable, though it is done in the knowledge that it will kill. But is ‘excusable’ the right classification? Contractualism positively supports the switch being thrown, other things being equal. Scanlon says about a parallel case that the principle of benefiting the most is consistent about the value of lives at stake in the trolley case, so that the victim cannot complain that his life is given less weight than those of the second and third people who would be saved if the switch were thrown. The second life is the tie-breaker.12 In delivering this verdict contractualism comes close to rule utilitarianism’s verdict that it is wrong not to throw the switch. Contractualism does of course acknowledge a cost when one person’s life is taken to save three. But so long as the burdens imposed on people by competing principles are taken into account, contractualism can agree that the switch should be thrown.13 Shouldn’t an acceptable moral theory have something to say for not throwing the switch? The excusability principles we have considered apply only to emergency response that goes wrong in some way. They do not apply to the refusal to respond when responding involves killing someone. But consider the precept, Maximize life-saving but never by killing.

This might be the principle followed by someone who thought killing for any purpose except self-defence was playing God, and who did not want to play God. 12 13

What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998), p. 243. For doubts about the adequacy of the contractualist justification in trolley cases from someone who also thinks that numbers can be given weight in a theory of practical reason, see Raz, ‘Numbers with and without contractualism’ Ratio 16 (2003), pp. 346–367.

20

Private emergencies and institutions

Such an agent might not want unilaterally to pass a death sentence on an innocent person, even for the sake of saving three innocent persons in a trolley problem. Since emergency sometimes forces us into this position, is that a further reason for trying to prevent it or domesticate it? Perhaps it is a reason for trying to place the obligation of maximizing life-saving on neutral and impartial institutions with a publicly conferred discretion to maximize lives saved while minimizing lives taken.

Institutions Since politically conferred discretion takes away the objection to unilateral life and death decisions in emergencies, and since principles of neutrality and impartiality minimize arbitrariness and discrimination in the supply of life-saving resources, no one plays God when an institution acts in a trolley problem case, not even the individual in charge, if there is one. No one plays God, because death sentences are both non-arbitrary and authorized. To the extent that the relevant principles of neutrality and impartiality come from liberal democratic politics, liberal democratic politics reduces the demands of private emergency response. Not only do public rescue services free people from playing God; they can be deployed on a scale that increases the number of rescues that can be mounted simultaneously. This does not mean an end to trolley problems, but it increases the number of life-sacrificing responses to them that the victims can be understood to authorize.14 14

The suggestion coheres with the distinction between private and public morality drawn with a different question in mind by Thomas Nagel in ‘Ruthlessness in public life’, reprinted in Nagel’s Mortal Questions (Cambridge University Press, 1979), pp. 60–75: ‘Public institutions are designed to serve purposes larger than those of particular individuals or families. They tend to pursue the interests of masses of people . . . In addition, public acts are diffused over many actors and sub-institutions; there is a division of labour both in execution and in decision. . . . Some of the same agent-centred restrictions on means will apply to public action as to private. But some of them will be weaker, permitting the employment of coercive, manipulative or obstructive methods that would not be allowable for individuals’ (83–84). The greater latitude of public institutions is connected to their obligations to produce certain consequences for their publics – which individuals do not have; and consequently their not being able permissibly to opt out of occasions for producing those consequences; as in emergency response. It can be obligatory for rescue services sometimes to do things like pulling the switch in the face of

Ethics for private emergencies

21

I am claiming that the ground for domesticating private emergency in trolley problem cases is partly to be drawn from the grounds for having legitimate public institutions, rather than grounds for every well-intentioned free agent who can to take on the role of rescuer. Or, to put it another way, discretionary private emergency response raises questions of legitimacy about rescues more directly than other practical questions and other agents, and forms of reasoning that are relevant to emergencies are more appropriate to public institutions than to individuals. In other words, there is a sense in which the range of emergencies threatening many lives and having to be confronted by unaccountable agents should – morally should – be kept to a minimum. Public emergency response is to be preferred to private and not only when an emergency affects a large population. If the need for public accountability is great where the means of rescue are limited but the need for rescue is urgent, it is even greater where the means of preventing imminent harm or loss of life on a large scale seems to be not just wrong but so absolutely prohibited that their use would seem to be inexcusable. Torture in the service of large-scale rescue or prevention of a large-scale terrorist attack is a case in point. In order for it not to be unthinkable, great vital interests must be at stake: interests in survival itself for large numbers of people, for example. But, in addition, the agent making that judgement should occupy a role in a set of legitimate institutions that are normally constrained to treat torture as unthinkable. There can be no question of privatizing the judgement, because of the loss of connection that would entail between the public and a legitimate security institution, as opposed to the public and an effective, well-meaning vigilante. I shall have more to say about institutions and security in Chapter 3. competing demands for rescue, but because of the other institutions – judicial ones, notably – that constrain rescue services in liberal democracies, carrying out these obligations is not insensitive to the rights of the people whose lives are lost when switches are pulled. These people can even grant discretion to the institutions to maximize life-saving when to maximize involves the sacrifice of some of the discretion-granters.

2

Public emergencies, black holes and sober Hobbesianism

From private to public emergencies In considering whether it is always morally urgent to prevent preventable emergencies or domesticate the others, I suggested that the answer was ‘Not necessarily’ for private emergencies, but probably ‘Yes’ in the case of overwhelming public emergencies. For example, violent civil war involving genocide is not only an occasion for great harm; it is also an occasion for the serious rupture of moral conventions, and of co-operative relations more generally. When riots break out, people not only fight, but they opportunistically commit property crimes while the police or army are trying to deal with violence.1 Looting is commonplace, for example. When public disorder is widespread and lasts more than a few hours or a few days, there are big movements of people to places where the authorities are unable to feed, shelter or care medically for them. Houses that are abandoned come to be occupied by others or are looted and destroyed. In this way, displaced people become stranded in a no-man’s-land. Economic arrangements are disrupted; rumours multiply and are hard to discredit. People can be separated, with no means of regaining contact. In these circumstances, it is easy to feel deeply cut off, with all connections to people and things that are dear or familiar lost or at risk. In these circumstances, it is natural to distrust others and to keep what one has for those one knows best. It is natural to take pre-emptive action against potential attackers or competitors, there being no recourse to the public authorities that are supposed to protect one in normal times. Vulnerability and poverty increase, but without an enlargement of sympathy that might be prompted by vulnerability and poverty in normal times. Competition is introduced into the struggle for survival, and 1

This may correspond to breakdown of what Scanlon calls ‘informal politics’ in ‘The Difficulty of Tolerance’, reprinted in The Difficulty of Tolerance: Essays in Political Philosophy (Cambridge University Press, 2003).

22

From private to public emergencies

23

with that, action in self-defence may become the rule rather than the exception. In this way, there can quickly develop a collective slide into a sort of free-for-all. When this happens a public emergency can also multiply private emergencies. Each person or many individual people can face a situation in which his or her life is at risk, but without having the survival skills necessary to cope. Nor are these skills easy to acquire at the same time as one has the set of inhibitions inculcated by conventional morality under conditions of order and plenty. Again, people may be faced with urgent demands for rescue and have no life-saving skills. Military training may help, but even the skills it inculcates usually depend on being directed by a commander. In other words, there may be nothing to prepare one for the demands of survival in Rwanda or even in a New Orleans under water after Hurricane Katrina. To cope, people routinely have to do things that in normal times would seem either ruthless or heroic. These are the sort of facts that seem to make it morally urgent to prevent general, public emergencies, or to cut them as short as possible where they do occur.2 If they are not prevented or curtailed, it is plausible to say, people will be sucked into a black hole. Although this line of thought is plausible, and up to a point correct, it homogenizes emergencies, and it does not separate out domesticating measures from ad hoc curtailment measures. To undo the homogenization, some comments are in order about the variety of emergencies, and how this variety should register in a moral and political philosophy of emergency. An attractive first distinction is between natural disasters and emergencies arising from political disorder. This distinction has drawbacks for an entirely general treatment of emergency,3 but given the 2

3

Here I think I find a point of agreement with David Wiggins, who thinks that emergencies alert us to an unusual category of moral concern for virtuous agents, a concern to preserve the very conditions under which human civilization can survive and ordinary morality can make its normal demands. I think Wiggins homogenizes the category of emergencies more than I do, and that his account suffers as a result. See his Ethics: Twelve Lectures on the Philosophy of Morality (London: Penguin, 2006), pp. 250ff, esp. p. 259. Many of the questions raised by public emergency depend on factors that cut across the distinction between natural and civil emergency: e.g. the character of the public agencies that an emergency confronts, the character and strength of social custom before the emergency, especially customs of self-help, mutual help

24

Public emergencies, black holes and sober Hobbesianism

concentration in this book on political emergencies, it is hard to get away from. War, international or civil, and public disorder will be the main phenomena referred to. It is not immediately clear, however, that these are always sites for a fully-formed black hole. Even during a world war, previously strong states do not necessarily cease to function, and civil society does not necessarily weaken. Nor are science and culture and economic production necessarily casualties of war. On the contrary, war can stimulate scientific advance, and music and art can come to be valued more than in peacetime. Even interpersonal relations can seem more valuable. More than 60 years after the war, there is still nostalgia in Britain for the ‘Dunkirk Spirit’ and the solidarity in straitened circumstances that is remembered to have prevailed between 1939 and 1945. Nor was the British state weak on account of being enveloped in war. As for the typically weak states of our own day, when they are tipped over into fully-fledged anarchy by civil war or disaster, the absence of local authority is not always sufficient for a black hole. In a globalized world, public attention and institutions are spread wide, and there are international agencies whose standards can be exported with a relief effort to fill the vacancy left locally by a defunct government. This means that black holes may not provide an argument separate from and non-aggression, and the extent of the emergency in time and space. A more important distinction than that between natural and civil emergency may be that between mild and severe emergencies – relative to a scale of harm and numbers of people. Then there is the distinction between emergencies facing weak and dysfunctional states on the one hand, and strong, resource-rich ones on the other. It may come closer to a black hole for thousands of very poor inhabitants of already weak states to be made refugees by civil war or natural disaster or both. In that sort of case, the background shortages of shelter, food and medicine in normal times can easily degenerate into total dispossession and serious injury after a disaster. The relatively recent earthquake in Haiti is an illustration. In cases like that, the idea that a black hole is in the offing is undeniably compelling, though its extent in time and space may be relatively small. New Orleans immediately after Katrina arguably witnessed short-lived black holes as well, again in areas that were already very deprived by American standards. The black holes there formed after substantial evacuation left many caught up in the flooding in relative isolation and great vulnerability. Even then the black holes were short-lived. But these extreme cases are quite different from local rioting in small sections of fully functioning, well-resourced Western cities, or seasonal floods in a relatively sparsely populated rural area within an efficient and wealthy state. In cases like these, notwithstanding the scope for local mayhem, the sudden degeneration of a comfortable way of life – with the normal decencies – into a black hole seems highly unlikely.

Black holes and the state of nature

25

harm for urgent domestication and curtailment. In the world as we have it, even with its extremes of poverty and its host of failed states and weak regimes, black holes may not be big enough where they occur to provide special arguments for avoiding or minimizing emergencies. It may be that injury and illness and the loss of shelter, food and water that comes with emergencies are the more crucial considerations. It is harder than it seems to identify even global emergencies whose effects might be pervasive enough to break down all moral order everywhere. Severe climate change or pandemic or widespread nuclear war would constitute severe emergencies in the sense that they might create injury, illness, displacement and isolation on a massive scale. But it seems implausible to me to claim that dispositions to help or not to harm that are second nature in many cultures, if not universally, would vanish instantly in survivors of those cultures, and that a tsunami or an earthquake would be enough instantly to turn people with scruples into sociopaths. We could of course reflect on a possible world in which the only survivors of a disaster were existing sociopaths, and here I think we would have our black hole. But that possible world seems very remote from the actual one.

Black holes and the state of nature There are nevertheless respectable exponents of the view that government in its various forms is essentially a response to the threat of the black hole and that all politics is emergency politics. The black hole is a focal point of controversy in the early social contract tradition, since Hobbes presents the state of nature as a black hole, and other social contract theorists, sometimes reacting against Hobbes, think of the state of nature either as idyllic or at least as a condition that permits moral behaviour. In the social contract theories of Hobbes, Locke and others, the state of nature is the human condition before there was a state order, and the condition that human beings would be returned to if an existing state were to dissolve. Although social contract theorists as a body are far from unanimous in claiming that the state of nature is at the extreme of permissiveness, Hobbes at least held that in the pre-political state people have the right – the right of nature – to do anything that seems to them to promote their own selfdefence and more general well-being. According to Hobbes, until there is a common standard that everyone recognizes – a standard available

26

Public emergencies, black holes and sober Hobbesianism

only when one erects a government – each is a law unto himself, and there is no gainsaying what anyone decides is necessary for survival or for general disadvantage. Worse, given the way the passions operate, human beings will naturally make practical decisions that give too much weight to the self, the present and the pleasurable. These biases themselves start wars and interfere with preventing them. On the Hobbesian view,4 the state of nature is an extreme emergency – all out war – in which the concept of justice has no footing, and the unique alternative and antidote to it is the voluntary submission of each of a majority of local warriors to an authoritative public judge of what must be done by everyone to stay alive and enjoy a modest well-being. A public authority is established when each transfers the right of judging for himself, and each makes himself the vehicle of the will of a common authority. Either submission is total, according to Hobbes, or people never really surrender the right to rule themselves, in which case one bargains for the return of total war, with its black hole. Or, in other words, one must choose between war and authorized dictatorship. The state in which each is a law unto himself needs to be abandoned, according to Hobbes, because it is likely to be fatal. Where anything is permitted that seems to any agent to be advantageous to him, it can seem permissible to take life, and it will be easy to lose life. Everyone necessarily has an aversion to death; this is why total emergency with its black hole must be avoided, according to Hobbes. Kant also thinks the state of nature must be abandoned, on the ground that in the state of nature there is no distinction between what seems right and good to an agent, and what is right and good.5 In the state of nature there will be no rationally authoritative judgements of the good, only judgements that are deferred to because the people making them are powerful. Like Hobbes, Kant thinks the state of nature is a black hole, and again like Hobbes, Kant thinks that a black hole is what states dissolve into when they are broken by civil war. This is why, yet again like Hobbes, he is so uncompromising in his condemnation of rebellion.6 4

5 6

This must be assembled not only from Hobbes’s political treatises, Elements of Law, De cive, and Leviathan, but from other writings, such as Chapter 1 of De corpore, where the benefits of (his) political science are expounded. Metaphysics of Morals, Mary Gregor, trans. (Cambridge University Press, 1991), p. 124, Ak, VI 312. For a different interpretation that in my view seriously understates Kant’s Hobbesianism, see C. Korsgaard, ‘Taking the law into our own hands: Kant on

Black holes and the state of nature

27

Kant and Hobbes seem to me to be wrong to identify the state of nature with a black hole in their different ways, and wrong to think that the collapse of a state always puts former citizens in a condition of life- threatening enmity, or in a state where the distinction between real and apparent right disappears, bringing about a morally inchoate life among those living in one place. Accordingly, both seem to me to be wrong to put rebellion beyond the pale.7 But there is something right in the illiberalism of the two theories in this connection. In Kant, it is illiberalism about actions that would undercut the conditions of public right. In Hobbes, it is illiberalism about actions that would undercut the agreed purpose of the state, which is public safety, not to mention the natural law imperative of self-preservation. An authority erected for the sake of public safety, Hobbes says, cannot tolerate actions that directly endanger life. Or, in other words, the Hobbesian state recognizes a right to life. This is the pre-eminent, maybe the sole, right of citizens, and it is the right that is most directly violated by actions that return a people to the state of nature. One does not have to be a Hobbesian to think that a right to life is pre-eminent. On the contrary, this is the kernel of truth in the unreconstructed Hobbesian position. Characteristically, Hobbes argues for this position in ways that vastly exaggerate the range of life-threatening actions, and that inflate the number of prohibitions and institutions that sovereigns should devise to address threats to life from violence. Eliminating the exaggeration leads to the liberalization and democratization of the Hobbesian contract. But there remains within this new setup a proper acknowledgement of the need for institutions – Hobbes emphasises unitary government, an armed force answerable to the sovereign, educational institutions, a church subservient to the state, and mechanisms for governing the domestic economy and international trade – that counteract the threat of internal violence and external conquest. There is also a recognition of a particular threat to security that Hobbes – albeit in a characteristically overstated way – properly calls attention to. This is the effect on otherwise unaggressive and prudent

7

the right to revolution’, in A. Reath, B. Herman and C. Korsgaard (eds), Reclaiming the History of Ethics (Cambridge University Press, 1997), pp. 297–328. For a very different line of criticism, see Thomas E Hill, ‘A Kantian perspective on political violence’, reprinted in Hill’s collection, Respect, Pluralism and Justice (New York: Oxford University Press, 2000), pp. 200–236.

28

Public emergencies, black holes and sober Hobbesianism

people of a few who do not share the normal fear of death, and who are willing to sacrifice their lives out of bravado or for arguably irrational purposes. Hobbes was particularly concerned with the operation of glory, which might lead someone to take mortal offence at some minor or even imaginary slight, with fatal consequences.8 He also saw the dangers of religious delusion, which might make someone think he was on a divinely appointed mission that could lead to martyrdom. Fundamentalism, in particular counter-cultural fundamentalism, is a threat to security that even a more sober Hobbesianism identifies, and hostility to its unreasonableness is implicit in forms of contractualism otherwise at variance with Hobbes. In the rest of the chapter, I try to extract a more sober Hobbesianism from the excesses of unreconstructed Hobbesianism. That will put me in a position to argue in the rest of the book that an acceptable account of emergency response has to be consistent with Hobbes’s insights about the pre-eminence of the right to life and also the danger posed by people who value some things more than their own lives. In this chapter, those insights are subtracted from an unreconstructed Hobbesianism that lays too much stress on black holes as reasons for avoiding emergencies, and that associates black holes with too many kinds of emergencies.

From unreconstructed to sober Hobbesianism War and authorized dictatorship To my knowledge, Hobbes does not use the word ‘emergency’ in arguing for strong government9 or what I have been calling authorized 8

9

Lev. ch. 13: So that in the nature of man, er find three principall causes of quarrel. First, Competition; Secondly Diffidence [i.e, distrust]; Thirdly, Glory. The first, maketh men invade for Gain; the second, for Safety; and the third, for Reputation. The first use Violence, to make themselves Masters of other mens persons wives, children and cattell; the second, to defend them, the third, for trifles, as a word, a smile, a different opinion, and any other sign of undervalue, either direct in their Persons, or by reflexion, in their Kindred, their Friends, their Nation, their Profession, or their Name’. Tuck, ed. p. 88. See my ‘Hobbes, Locke and the state of nature’ in S. Hutton and P. Schurmann, eds., Studies on Locke: Sources, Contemporaries and Legacy (Dordrecht: Springer, 2008), pp. 27–44. In this chapter I draw on a big body of work I have published on Hobbes and Hobbesians. In order not to load the text with references and citations, I will refer at various places in what follows to items

From unreconstructed to sober Hobbesianism

29

dictatorship. The crucial concept is that of war. Hobbes also speaks, though not in the best known of his political writings, of humanly from the following list, in which the relevant exegetical detail can be found. T. Sorell and L. Foisneau, eds. Leviathan After 350 Years. (Oxford, 2004). T. Sorell and John Rogers, eds. Hobbes and History (Routledge, 2000). T. Sorell ed. The Cambridge Companion to Hobbes (Cambridge, 1996. Third Printing. 404pp). T. Sorell, Hobbes. Arguments of the Philosophers (Routledge, 1986 and 1994), 160pp. ‘Hobbes, public safety and political economy’ in R. Prokhovnik and G. Slomp, eds. International Political Theory After Hobbes (London: Macmillan, 2011), pp. 42–55. ‘Thomas Hobbes’ in Encyclopaedia Britannica (2008). ‘Hobbes’s moral philosophy’ in P. Springborg, ed. Cambridge Companion to Hobbes’s Leviathan (Cambridge University Press, 2007), pp. 128–155. ‘Schmitt’s unHobbesian theory of emergency’ in L. Foisneau, J-C. Merle and Tom Sorell, eds. Hobbes and 20th Century Political Philosophy. ‘The burdensome freedom of sovereigns’ in T. Sorell and L. Foisneau, eds. Leviathan After 350 Years, pp. 183–196. ‘Hobbes’ in S. Nadler, ed., A Companion to Early Modern Philosophy (Oxford: Blackwell, 2002), pp. 320–337. ‘Hobbes on the history of philosophy’ in G. A. J. Rogers and T. Sorell, Hobbes and History, pp. 82–96. ‘Hobbes and Aristotle’, in C. Blackwell and S. Kusekawa, Philosophy in the Sixteenth and Seventeenth Centuries (Scholar Press, 2000), pp. 364–380. ‘Thomas Hobbes’ in E. Barbanell and D. Garrett, eds. Encyclopaedia of Empiricism (Westview, 1997), pp. 114–133. ‘Hobbes’ in E. Craig, ed. Encyclopaedia of Philosophy (Routledge, 1998), vol. 4, pp. 459–476. ‘Le Dieu de la Philosophie et le Dieu de la Religion chez Hobbes’ in L. Foisneau, ed. Politique, Droit et Theologie Chez Bodin, Grotius et Hobbes (Editions KIME. Paris, 1997), pp. 243–264. ‘Hobbes’s scheme of the sciences’ in Sorell, ed. Cambridge Companion to Hobbes, 45–61. ‘Hobbes’ in E. James and N. Bunnin eds. Blackwell Companion to Philosophy (Blackwell, 1996), 530–540. ‘Hobbes’s objections and Hobbes’s system’ in R. Ariew and M. Grene, eds. Descartes and his Contemporaries (University of Chicago Press, 1995), pp. 83–96. ‘Hobbes’s epistemology’ in J. Dancy and E. Sosa eds. A Companion to Epistemology (Blackwell, 1990), 11–25. ‘The science in Hobbes’s politics’ in G. A. J. Rogers and A. Ryan, eds. Perspectives on Thomas Hobbes (Clarendon Press, 1988), 67–80. ‘Hobbes on trade, consumption, and international order’, The Monist 89 (2006), 245–258. ‘Hobbes’s uses of the state of nature: Etudes Philosophiques. ‘Schmitt, Hobbes, and the politics of emergency’ Filozofski Vestnik 26 (2003), 223–242 ISSN 0353–4510. ‘The normative and the explanatory in Hobbes’s political science’, Revista di Storia della Filosofia 2004, pp. 205–217. ‘Hobbes and the morality beyond justice’, Pacific Philosophical Quarterly 82 (2001) 227–242. ‘Hobbes overcontextualised?’ The Seventeenth Century 16 (2001), pp. 123–146. ‘Hobbes and Gassendi’ in G. H. R. Parkinson, ed. Routledge History of Philosophy vol. 4. (Routledge, 1993), 235–272. ‘Hobbes without doubt’ History of Philosophy Quarterly (1993) 121–136. ‘Hobbes’s Persuasive Civil Science’ Philosophical Quarterly (1990) 342–351. reprinted in G. Slomp, ed. Thomas Hobbes (Ashgate, 2008). ‘Hobbes’s unAristotelian political rhetoric’ Philosophy and Rhetoric 23 (1990) 96–108. Reprinted in J. Dunn and I. Harris eds. Great Political Thinkers (Edward Elgar, 1995).

30

Public emergencies, black holes and sober Hobbesianism

avoidable calamities. He says (De Corpore, ch. 1, art. 7) that the greatest avoidable calamities are ‘slaughter, solitude and the want of all things’. These, he thinks, arise from war, and in particular civil war. War is any period of time in which human beings show that they are willing to fight one another for things (cf. e.g. Lev. ch. 13, Tuck, ed. p. 90). Unless people submit in the right way to a sovereign with unlimited power, they face war with its greatest of all calamities; so they should submit. Submission means abiding by a strong sovereign’s well-framed laws. So sovereigns should frame their laws well, i.e., with a view to preventing conflict; and subjects should obey those laws. That, in a nutshell, is the message of Hobbes’s political philosophy. Why he thinks that without strong government people will face slaughter, solitude and the want of all things is that, without government, individual people become their own judges of what is for the best, and will pursue goods dictated by their own passions, whatever they are. These passions may not on their own lead to violence, but the knowledge on the part of each individual, even moderate individuals, that some other individuals will resort to violence for anything they want, gives even non-violent people a reason to strike out before they are attacked. In this way, everyone, no matter how mild-mannered, has a reason to adopt an aggressive posture, and to act in the same way as those who are violent and acquisitive by nature. Defensive mistrust in the meek leads to war just as readily as greed does in people who are confident that they will always prevail in a fight. And so, general aggression is reasonable. It is reasonable, at any rate, if it is never blameworthy to protect oneself, and if the means of self-protection are up to each agent to choose. At the same time, being unwilling to work is reasonable. There is no incentive for what Hobbes calls ‘industry’, because whatever anyone makes or grows is so likely to be taken by an aggressor. The unreasonableness of work, and not just the threat to life, is what makes for ‘the want of all things’ in the state of nature.10 10

‘In such condition [war among individuals], there is no place for Industry, because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious building; no Arts; no Letters; no Society; and which is worst of all, continual feare and danger of violent death’ (Leviathan, ch. 13, Tuck, ed. p. 89).

From unreconstructed to sober Hobbesianism

31

Hobbes thinks11 that, within a functioning state, no one is typically in danger of violent attack. But that is because, in a properly functioning state, the many delegate the business of protecting themselves to an agent they empower to see to the collective security. Each citizen receives protection from a central authority whose ability to enforce its threats of punishment on wrongdoers puts off would-be attackers. The benefit of protection is the other side of the coin of submission, according to Hobbes. It is true that submission is also the loss of freedom, or of the right of self-government, but the other side of the supposed good of freedom is the risk of insecurity and violent attack. Better, then, to trade freedom for security if one has never submitted before, and better to keep on submitting, if one is being encouraged to disobey authority, even for the sake of one’s rights. What form of authority is the citizen to submit to? Any functioning authority is better than none, according to Hobbes, but he thinks that there are problems with forms of government that divide power, or that allow decisions taken today to be reconsidered tomorrow. In these respects, monarchy – sovereignty in one person – is better than democracy or aristocracy, where government is vested in an assembly. Hobbes never pronounces absolutely in favour of monarchy, though he was inclined to prefer it in De cive, but his list of the disadvantages of assemblies always seems to be longer than his list of the disadvantages of one-person rule. Whether vested in one person or one body of people, however, sovereign power must be unlimited and undivided. A division or separation of powers threatens to deprive the sovereign power of reliable means to see to security, while limits on his power empower possible rivals, again with threats to the sovereign’s ability to keep the peace. Hobbes concedes that submission to a power that is so concentrated goes against the grain, and seems too big a price to pay, but he thinks that people exaggerate the price of submission when the price of no submission is all the calamities that go with war. ‘[A]ll men,’ he says, ‘are by nature provided of notable multiplying glasses, (that is their Passions and Selfe-love,) through which, every little payment appears a great grievance’ (Lev. ch. 18, Tuck, ed. p. 129). If war brings with 11

For textual details, see my Hobbes, Arguments of the Philosophers. (Routledge, 1986 and 1994) chs. 8 and 9, and ‘Hobbes Moral Philosophy’ in P. Springborg, ed. Cambridge Companion to Hobbes’s Leviathan (Cambridge University Press, 2007), pp. 128–155.

32

Public emergencies, black holes and sober Hobbesianism

it solitude, slaughter and the want of all things, then, according to Hobbes, whatever non-lethal price of preventing war is exacted by any form of government, it is worth paying. Concentrated power does not necessarily make life under government worse than life under diluted power, since it is under diluted power that popular disagreement can turn into armed factions, private armies and civil war. In any case, he says, life under such concentrated power, with sovereigns exercising their rights to the full, is unknown, and this explains why the history of commonwealths is the history of relatively short intervals between wars. Although submission to concentrated power – to a kind of dictatorship – is recommended by Hobbes’s political philosophy, it is not supposed to be a dictatorship without consent. Before the creation of a commonwealth, people agree amongst themselves to lay down their right of nature – their right to see to their survival and well-being as they see fit – and to let a man or body of men decide on matters of survival and well-being for them all. The many agree amongst themselves – and so consent – to give this man or body of men a nearly blank cheque. He or they is entirely free to decide the means of security and to require action on the part of the many in keeping with the means – so long as the means do not themselves seem to the many to take away the conditions of security and well-being. Within these unconfining limits, what the sovereign says goes. If the limits were more confining; if subjects could themselves veto the sovereign’s choice of means, or unseat him at an election, or make his choice of means cohere with a bill of rights, then, according to Hobbes, people would not really be taking away the conditions of war – which Hobbes associates with a plurality of passion-ruled practical judgements – for there would still be a plurality of passion-ruled judgements about when people’s rights were being infringed, or whether the means chosen for collective security were the correct ones. For these reasons, entry into the commonwealth is supposed to require total abstention from judgement on these matters on the part of the many. Private judgement of good and evil is the second of the principal causes of break-up of commonwealths, according to Hobbes (Lev. ch. 29, Tuck, ed. p. 223), and the way in which the many make themselves one or a real union of people headed by the sovereign is precisely by letting his or her judgement, if the sovereign is an individual, or their judgement if the sovereign is an assembly, rule them all.

From unreconstructed to sober Hobbesianism

33

Things are more complicated if one is born into a commonwealth one has no hand in forming. In that case there will be customs about the extent of the sovereign power, and customs about the extent of obedience, and these customs may not support dictatorship. Hobbes’s argument applies even here. It provides a theoretical framework which allows people to see what the purpose of government is, and to see whether the customs that a particular government operates by, and the laws it introduces, interfere with or promote that purpose – which is collective security and permanent freedom from war. The theoretical framework is supposed to make submission to authorized dictatorship seem the ideal way for the many and its government to avoid war.12 The same framework is supposed to make social organizations approximating to obedience under dictatorship seem more reasonable to live under than others, if one’s overriding aim is to live in peace. The theoretical framework itself is supposed to induce consent to the ideal. But in practice people will be obliged to governments that fall well below the ideal, because they have a fearful power over them. Submitting to a de facto ruler out of fear and instituting a ruler is, for Hobbes, still to authorize someone or some assembly to be sole judge of the means to collective security.

The instability of Hobbes’s concept of war Hobbes’s argument for absolute submission depends on at least two claims: that war is supremely awful, and that anything short of leaving all judgements about security to a sovereign is warlike behaviour, or behaviour that invites war. Both claims are disputable. The second claim is disputable, because it rests on general claims about rationality that are disputable. The first claim is disputable, because Hobbes allows many different things to count as war, not all of which are awful. Let me begin with the awfulness of war and the varieties of war. Going by the account in ch. 13 of Leviathan, there are at least three kinds of war that Hobbes thinks have actually occurred in history. One is international cold war. Another is national civil war. The third is the life without government of North American aboriginal people 12

See my ‘Hobbes’s Persuasive Civil Science’, Philosophical Quarterly 1990, reprinted in G. Slomp, ed. Thomas Hobbes (Ashgate, 2008).

34

Public emergencies, black holes and sober Hobbesianism

in the seventeenth century. The first kind of war – international cold war – Hobbes thinks is historically pervasive. As soon as there were commonwealths, there was a state of cold war between them, a state of war that he thought had lasted until his own day and might be eternal. But notice that this sort of war could not be presented as supremely undesirable, and as threatening to take away all things. For international cold war was compatible with local peace and with the local enjoyment of the fruits of peace. To take an illustration close to home, when Hobbes fled England in 1640, anticipating the Civil War, he made for Paris. Paris, and other parts of France could appear to him to be a haven, even though, according to Hobbes’s theory, the whole of England and France were parts of a permanent global war-zone. Hobbes travelled frequently through this supposed global battlefield on at least three European grand tours, apparently more fearful of disease than armed attack. Admittedly, the frame of reference for the effects of international cold war is not the individual citizen of a given nation in the war, but the nation itself, personified by the sovereign. International cold war threatens each state with a national life that is solitary, nasty, brutish and short. The person of the nation disappears with conquest, and extreme isolation in the international community as well as impoverishment may precede conquest. It is in this way that Hobbes’s famous formula about the state of nature applies to nations. It applies even if war – hot or cold – happens not to disturb internal life, life at the level of the individual, too much. Nevertheless, international cold war illustrates some tensions in Hobbes’s theory of war. It is important to Hobbes’s theory that the concept of war covers cold war, the situation in which there is a widespread disposition to fight, and not just actual fighting. But the disposition to fight has fewer unwanted effects than actual fighting and may justify less concentration of power and the exercise of less far-reaching powers than actual fighting. For example, a cold war does not seem to justify a permanent mass-mobilization of troops, even if a permanent mass-mobilization of troops prevents the cold war turning into a hot one. What cold war seems to justify is the minimum measure necessary for preventing the outbreak of hot war. The permanent mass-mobilization may exceed this minimum. If it does, there is a sense in which the sovereign over-reacts and misjudges the cold war situation if he calls for the mass-mobilization. He makes a mistake even if he has been given a

From unreconstructed to sober Hobbesianism

35

blank cheque by his subjects in matters of protection. For there is such a thing as overspending on a blank cheque, and the colder the war, the greater the chance of overspending. Hobbes tends to argue as if the powers necessary for confronting a cold war are the same as those for a hot war, and he is helped to this conclusion by bringing too closely together hot war and cold, and by the bad argument that no authorized filling in of a blank cheque is better than any other. Let us now turn from international cold war to Hobbes’s second and third kinds of war. These are civil war and aboriginal life without government, respectively. It is the third kind of war that is supposed to come closest to the prepolitical situation Hobbes calls ‘the state of nature’, the situation in which a commonwealth would be instituted or constructed from scratch. Hobbes thinks, and expects his readers to agree, that human life along these lines is poorest in the things that civilization provides: efficient agriculture, architecture, transportation, science, including medicine, and so on. Surely, he argues, life in even the most repressive European state is better than that. Surely, he is saying, no seventeenth century European readers of his books would want to be reduced to the conditions of their American aboriginal contemporaries. But, he adds, this sort of life is on the cards as soon as one throws over government. Hobbes may have underestimated the quality of aboriginal life, but even if he did not, his account is in difficulty, for he runs together the effects of civil war in a developed state with the inconveniences of the state of nature. Unless the inconveniences of civil war are very great, they will not necessarily outweigh what Hobbes admits are the inconveniences of unlimited government. But for the inconveniences of civil war to be as great as those of a prepolitical situation, either the commodities of the civilized Europe of his time had to be very fragile, or the destructiveness unleashed by civil war had to be total and immediate. We have already seen the argument for the fragility of the commodities: in wartime people have reason to stop production and distribution. More importantly, he thinks he has an argument for the claim that, with government overthrown, people are reduced to the condition of those who have never had government. The argument is that the subjects of civilized Europe and the aborigines of America have their humanity in common, and that the destructive consequences of war are rooted in what human beings are like rather than in what seventeenth-century Europeans or seventeenth-century American

36

Public emergencies, black holes and sober Hobbesianism

aboriginals are like.13 The argument also assumes that government does not really alter people but at most keeps under control the ingredients of war in their collective life. As soon as the controls are taken away, natural human impulses reassert themselves, and their effects are the same in Europe as in America, the same in 1651 as in 651.14 Now this claim is both implausible on its face, and inconsistent, as we will see, with what Hobbes implies are the effects of his preferred organization of commonwealth. The claim is implausible on its face, because it underestimates the effects of custom. For example, Hobbes’s theory implies that in an English village with strong traditions of mutual help, or in a mechanically law-abiding middle class suburb, a beast in each person would be unleashed at the first sign of civil unrest threatening government in London. It seems to me just as likely that the villagers or suburbanites would find it very difficult to become looters or vigilantes overnight. They might carry on peaceably as long as possible, perhaps going so far as to beef up the Neighbourhood Watch scheme to protect against the depredations of outsiders. But the insurrection in the rest of the country would not necessarily be seized upon as a pretext for a local free-for-all. In short, contrary to what Hobbes sometimes seems to imply, the habit of keeping the peace may take some time to catch up with the fact of insurrection. It might be thought that this objection is based on a misunderstanding, because it mistakes an argument for what people have reason to do or what they can’t be blamed for doing, for an argument about what they will do. Even if, out of habit so to speak, the middle class of Surrey keeps on putting coins in the parking meters while rebels try to take over Parliament and the studios of the BBC, it is arguably unreasonable for them to do so, and blameless for them not to do so. And it might be said that this is Hobbes’s point. Hobbes may be saying that there is war when it is more unreasonable to put the coins in the 13

14

In his three political treatises Hobbes argues not just from propensities human beings are born with, notably the basic passions, but also from some that are acquired, like language, and the complex differences these make to the repertoire of emotions and behaviour. Also important to Hobbes is the idea that pre-politically there can be no conclusive moral arguments. Both moral science and political authority are needed to stabilize the meanings of ‘good’, ‘evil’, ‘just’ and ‘unjust’ in public conversation. See my ‘Hobbes’s Moral Philosophy’ in Springborg, ed. The Cambridge Companion to Hobbes’s Leviathan (Cambridge University Press, 2007), pp. 128–155.

From unreconstructed to sober Hobbesianism

37

meter than not to, or to pay income tax than not to, or to refrain from looting one’s neighbours’ houses than not to. There can be war in this sense even if custom prevails and the middle class of Surrey remain unreasonably peaceable. This line of thought hardly gets Hobbes off the hook, however, for whether it is reasonable for the average middleclass person of Surrey to turn violent depends on what other members of that middle class are likely to do. If there is a strong custom of not disturbing the peace, if it goes against the grain of most people to turn violent or predatory, then it may be better for everyone to behave the same old way, i.e., in the customary, peaceable way. However one looks at it, it seems implausible to insist that long-standing traditions of obedience and accommodation will break down at once in the absence of a power able to force shows of such behaviour. Hobbes’s own theory implies that, in a well-regulated commonwealth, people will not be kept in line only by coercive institutions. He thinks that there has to be an elaborate system of public instruction of people in their civic duties (Lev. ch. 30, Tuck, ed. pp. 233ff). Special days for learning civic duties have to be appointed, and special institutions, including universities (Ibid. p. 236). The point of this instruction, evidently, is to implant a disposition to behave in accordance with the sovereign’s decrees apart from the fear of the sovereign’s punishment. People are supposed to refrain from fraud, rape and other unjust practices not just because there are laws against those things and fearful punishments, but because they understand that such practices damage things that everyone has reason to find important: their own life and limbs, their loved ones, and their riches and means of living (Lev. ch. 30, Tuck, ed. p. 236). Once the instruction has taken, it can keep people in line even if the coercive power behind the laws wanes. The instruction starts a custom or tradition, which can continue to have a point even when there is no one around to enforce it. A way of summarizing the foregoing is by saying that the longer lived and better entrenched the peace, the less the removal of government means a war that is bound to be palpably awful. Perhaps the better established the peace, the colder the war when the peace is disturbed. But the colder the war, the less awful the war; the less awful the war, the less strong the justification for writing the sovereign a nearly blank cheque. Submission to government may still make sense, but not submission to unlimited government, with maximum room for manoeuvre. Or to put it another way, the longer lived and better entrenched

38

Public emergencies, black holes and sober Hobbesianism

the peace is, the more remote a full-blown public emergency. Collective human life is not everywhere and always an emergency waiting to happen, and so a government does not always have to have available to it emergency powers.15

Hobbes’s weak argument for the concentration of power Hobbes seems to have a weak argument for giving governments unlimited powers; he seems to have even weaker arguments for extensive powers concentrated in a single agent. Once again his starting point is the natural condition of human beings. He claims that there is no natural standard of right reason (Lev. ch. 5, Tuck, ed. p. 33), and that people are carried away by their passions even in the defence of their factual beliefs. What is more, he thinks it is rare for people to be acquainted with science, let alone to develop any. This means that people are likely to fall into error, and that they are likely to be stubborn in maintaining their views when others disagree with them. In these circumstances, two heads are rarely better than one, according to Hobbes. On the contrary, the more heads, the more natural sources of controversy, and the greater the need for enquirers to be willing to submit to the judgement of an arbitrator (Ibid.). In relation to matters of security and well-being, as opposed to the proofs of mathematical theorems or the proposal of hypotheses in physics, individual judgements are likely to be even less authoritative. They are likely to be short term, geared too much to pleasure rather than other sorts of well-being, and selfish. They will also lead people to go after things that cannot be shared, which will make them fight over them. The remedy for all of this is a better standard of practical guidance than the many conflicting ones supplied by the untutored practical judgements of the many. A better standard of judgement will be more dispassionate than natural practical judgements, and it will be employed by a judge that unites the individuals who make judgements in the state of nature. This is of course Hobbes’s sovereign. The sovereign makes practical judgements on behalf of the many whom he rules over, but without being subject to the passions of each of the many. Of course, the 15

This point is implicit in Hobbes’s distinction between good laws and bad laws and, in his idea that, to be good, laws have to be necessary. The relevant doctrine will be central to the discussion in Chapter 6.

From unreconstructed to sober Hobbesianism

39

sovereign will be a natural person or a body of natural persons, and while he or they will have passions of their own, they have reason not to indulge their own passions at the expense of the safety or security of the many; for the cost of doing so is disempowerment and probably loss of life if the many take revenge for having their safety compromised. In this respect the private interest of the sovereign is tied to the public interest: the safety and security of the many. Now the key to Hobbes’s preference for monarchy is connected to the unity of the sovereign power, the reduction of many loci of judgement to just one, and the coincidence of the public with the private interest. For example, he says explicitly that whereas in a monarchy resolutions are subject only to the inconstancy of human nature present in the individual sovereign, in an assembly there is a second source of inconstancy as well: namely, the fact that the number of people in an assembly is more than one. This means that there can be an influential dissenting party that undermines any decision arrived at or that even gets it overturned. For these and other reasons he claims that one-man sovereignty is better than sovereignty in the form of an assembly. Since the command of the one-man sovereign is law, and since there is very little that the sovereign can command unjustly, according to Hobbes, it is natural to take his argument to support dictatorship. Not dictatorship in the worst of times only, but permanent dictatorship. The argument is only as persuasive as its case for the subjectivity of practical and theoretical judgement, and the latter case seems to depend on exaggeration. There is no reason to think that the conclusions of arithmetical calculations or scientific demonstrations are to be settled by an arbitrator when disputed; there is some reason to think that Pythagoras’s Theorem or ‘The earth goes round the sun’ is true whether or not an arbitrator or anyone else agrees to it, whether or not it is disputed. In cases like these, the claim that standards of truth or conclusiveness have to be declared or constructed, and that they do not exist independently of conventions, seems false. Nor is Hobbes’s case even plausible for all value judgements or judgements about what people ought to do. On his own showing, passionate people can agree to peace, and independently of Hobbes, there can be agreement to the value of certain primary and prudential goods. There is historical evidence in our own day of agreements between states with very different cultural and ideological traditions to the same extensive lists of human

40

Public emergencies, black holes and sober Hobbesianism

rights. There is evidence of people’s ability to negotiate these agreements without submitting to an arbitrator. So Hobbes underestimates the scope for stable collective deliberation, and he makes public controversy look like incipient civil war rather than what it sometimes is, a means of testing positions for plausibility or agreement with the evidence. Or, in other words, he seems not to do justice to the adage that two heads are better than one.

Cases that support Hobbes’s theory: towards sobriety I have already complained that Hobbes is too ready to treat disagreement as the early stage of a process leading quickly to violent conflict. He writes as if typical human agents are naturally infantile (Lev. ch. 5, Tuck, ed. p. 36), without taking account of the way training and life can lead them to accommodate one another. It is as if human agents are disposed to respond to not having what they want by taking something violently from the nearest human being they can overpower. Hobbes’s very general distrust of human conduct may be discredited by his exaggeration of the tendency of human beings to see things only from their own point of view, and to fight if they encounter a disagreeing point of view. People are not necessarily or typically like this when they grow up, even if they organize their actions under a general goal of pursuing happiness or felicity, and even if felicity consists of continually getting what one wants. After all, people can learn to abandon desires if the costs of satisfying them are too great, and they can pursue some desires that do not necessarily put them on a collision course with others. Indeed, they can learn to give added value to desires everyone can pursue and satisfy with a reasonable chance of success, and less to ones that consist of satisfying one’s desires on condition that other people do not satisfy theirs. The idea that human life is a competition to be foremost (EL, Pt. 1, ch. 9, §21) is one of the more disputable in Hobbes’s writings. Where Hobbes’s ideas about the tensions in the communal pursuit of happiness seem to come into their own is not in relation to the common or garden pursuit of felicity, or even the infantile pursuit of felicity by some human beings, but in relation to the ambitiously selfaggrandizing pursuit of felicity, often motivated by strong greed, or, very differently, the fundamentalist pursuit of felicity, where people’s personal projects are organized by some non-negotiable conception of

From unreconstructed to sober Hobbesianism

41

what life is for, or by an attachment to something whose loss would be close or tantamount to loss of life in that person’s scale of values. Where the non-negotiable possession of something or a non-negotiable conception of what life is for is challenged, there we reach the area of things people are in principle prepared to kill or die for rather than lose. Unofficial challenges to these value-conferring conceptions – from individuals as well as states – can seem insulting. People identify with these conceptions and see criticisms of them as expressions of personal disrespect, and so they are willing to fight for them. Attachments to a particular self-image, to people with whom one is or was romantically involved, to Gods, to religions, to nations, to political parties, even to football teams, can fall within the category of the non-negotiable. Call these fundamentalist attachments, and call the willingness to defend them at the cost of personal safety fundamentalism. Then we can distinguish between pro-cultural and counter-cultural fundamentalism. A visiting supporter of the Red Team who is willing to shout for them in a sea of Blue fans on their home turf displays counter-cultural fundamentalism relative to the local culture of fanatical supporters. Differently, he might be displaying pro-cultural fundamentalism in a sea of people who were only mildly attached to the Reds. In one setting fighting might break out because he displays fanaticism with the wrong object, and in the other setting fighting might break out because the fundamentalist does not think other Red supporters are fervent enough. Either way, we have conditions for conflict. Especially where the fundamentalist pursuit of felicity is countercultural and militant, i.e., conducted in angry and sometimes violent public demonstrations of opposition to values a majority of people locally are taken by the militants to associate with felicity, the militant, fundamentalist pursuit of felicity can seem impossible merely to constrain by the value of public security. It seems simply excluded by public security. That is why, internationally, the fans of different football teams are by consensus routinely kept well apart by force. (Later we shall see that a certain pro-cultural fundamentalism on the part of governments is also dangerous and also strongly criticizable within a Hobbesian framework – to its credit.) Of course, fundamentalism of any kind, pro-cultural or not, is going to appear in a negative light in unreconstructed Hobbesianism – since it introduces pretexts for violence and an willingness to submit to sovereign judgement in the area regarded as non-negotiable. Indeed, the idea of non-negotiability is

42

Public emergencies, black holes and sober Hobbesianism

just inconsistent with submission in Hobbes’s sense unless it is never manifested in public behaviour. The tolerability of fundamentalism increases the less militant it is, and the less public it is, on Hobbes’s principles. In the case of religious fundamentalism, which Hobbes addressed directly, its tolerability is limited by the necessity for some of its practitioners of public professions of controversial articles of faith, and its supposed inconsistency with absolute outward obedience to the sovereign. Hobbes has a delationary interpretation of the requirements of salvation (Lev. ch. 43) that means that defiance of the law is unnecessary, and the status of martyr is either unattainable (Lev. ch. 42, Tuck, ed. p. 344f) or else taken on unnecessarily. This means that religious orthodoxy can be achieved within the head, and that appropriately obedient outward behaviour can be displayed with no risk of eternal damnation. To be acceptable, religious fundamentalism has to be strongly private, withdrawn from the sphere of public behaviour, and this aspect of it, which promotes public safety, is the other side of the coin of being relatively easy to achieve, consisting as it does of adopting a certain mental attitude.16 The only stable public fundamentalism Hobbes thinks there can be is one that goes with the grain of any culture and so can be neither procultural nor counter-cultural in the usual sense – a fundamentalism, if it deserves to be called that, organized around the value of peace in his sense. This is not pacifism. On the contrary, for Hobbes that would be a recipe for conquest. Rather it is a kind of reverence for the sovereign law. It is possible that militant counter-cultural fundamentalism is an emergency waiting to happen, and some versions of its militancy deserve to be outlawed rather than argued with, outlawed by a strong government of the majority. This, however, is a much narrower emergency waiting to happen than the supposed potential emergency in human communal life, and the argument for a government’s dealing forcefully with it is very different from the argument for a sovereign subduing a whole citizenry. 16

Hobbes’s distinction between private and public and his use of the private sphere as a sort of receptacle for otherwise incendiary gestures and attitudes was criticized by Carl Schmitt as a way of undermining the metaphor of Leviathan. See Schmitt, The Leviathan in the State Theory of Thomas Hobbes, G. Schwab and E. Hilfstein, trans. (Chicago: University of Chicago Press, 1996). See esp. p. 61.

From unreconstructed to sober Hobbesianism

43

Not only does Hobbes’s theory of warlike humanity work better as a theory of the connection between fundamentalism and war; his theory of the nearness of civilized life to the state of nature works better for highly impoverished, epidemic-ravaged, or war-torn states than all states. In the comfortable villages of southern England, or in the farming communities of the American Midwest, as I have already pointed out, people would probably not suddenly turn on one another if the mechanisms of civil order disappeared, if, say, there was a sudden very concerted strike of the police, or if a section of the army tried to take over the government of England. Custom would probably get the better of the supposed tendencies to violent anarchy in human nature. But Hobbes’s account is far more plausible for localities in which there is much destitution and violence in normal times and which are suddenly caught up in an emergency. For people whose lives are difficult anyway, a sudden emergency can tip a situation of intermittent or suppressed violence into something more general and explicit. Failing states are likely to become failed states, but not all states are failing states in the making, and the makings of emergency can be found in pockets of states that are very far from being failed or failing. The aftermath of Hurricane Katrina in the United States illustrates this point very well and seems to bear out Hobbes’s otherwise apparently overstated account. In New Orleans, a natural disaster rather than a civil conflict quickly reduced the population that had not been able to leave to something like Hobbes’s state of nature. Without sanitation, food, protection from one another or any means of producing anything; without any ready means of escape, life did become nasty, brutish and short,17 and this despite the fact that there existed only a short distance away from the site of the disaster a fully functioning economy and military with the resources to impose order and commandeer aid on a huge scale. People who would perhaps never normally have contemplated crime or assault resorted to these things either opportunistically or out of desperation. The police reportedly 17

The following is quoted in David Remnick, ‘Letter from Louisiana’ New Yorker Magazine 2 October 2005, p. 54 from the account of Walter Hays, a poor black man caught up in the floods: ‘People were pulling guns. What we saw on the overpass was beyond imagining: there were suicides, people jumping off bridges, older people who couldn’t take it, . . . the whole overpass reeked of feces and urine. Fights broke out all the time . . . ”.

44

Public emergencies, black holes and sober Hobbesianism

left their posts in large numbers or patrolled the flooded areas on the lookout for ways they themselves could profit from the disaster. Some stranded women victims were reportedly exposed to sexual harassment and the threat of rape even from people who were supposed to protect them. In the huge stadium where people took shelter, people’s normal inhibitions and willingness to help were quickly overwhelmed by a race to be first to be evacuated. It has been said by commentators after Katrina that the ingredients of the descent into the state of nature were not just the effects of a hurricane, but of years of racially grounded disadvantage among the poorest of New Orleans.18 That may be true. But in the face of a disaster as overwhelming as Katrina, it was not just the poor and the black who were exposed to danger from other people: the natural disaster itself was of course completely insensitive to class and racial distinctions in the threat it posed. What Katrina also highlighted, then, was human vulnerability in full generality, and the great fragility of even the organization that efficiently produces in the rich world in normal times what is needed for a comfortable life. The fragility of civil order; the fact that its suppression of violence and poverty is never total even in a society unimaginably rich by the standards of Hobbes’s experience in the seventeenth century; the fact that the lack of food, clean water and elementary sanitation quickly reduces all human beings to misery; these are facts that, between times of natural disaster, we are helped by Hobbes to interpret and draw important and sobering consequences from. Even if Hobbes is wrong to say that the overthrow of a central authority must everywhere be attended by the same sort of free-for-all as Katrina seems to have driven people into in New Orleans; even if he is wrong to say that civil war is the worst of all human calamities;19 there is something right in the claim that certain kinds of public emergencies can produce black holes in the sense of Chapter 1. 18

19

For a detailed account, see Zack, Ethics for Disaster (Lanham, NJ: Rowman and Littlefield, 2009), ch. 6. Zack discusses, among other things, Naomi Klein’s claims of a connection between disaster management in New Orleans and a certain form of Friedmanite capitalism favoured by neo-conservatives in and around the Bush White House. See Klein, The Shock Doctrine: The Rise of Disaster Capitalism (New York: Metropolitan Books, 2008). See my ‘Hobbes’s Persuasive Civil Science’, Philosophical Quarterly 1990, reprinted in G. Slomp, ed. Thomas Hobbes (Ashgate, 2008).

From unreconstructed to sober Hobbesianism

45

It is interesting that Hobbes would have regarded Katrina as an unavoidable calamity, whereas for us, natural calamities, if not avoidable themselves, present dangers that human beings can greatly limit, especially in the rich parts of the world. On the other hand, civil disorder, terrorism, and other man-made and avoidable calamities, while they can be intensely disruptive, are compatible with no descent into the state of nature. The September 11 attacks, while certainly providing the ingredients of mass terror, did not produce anything like a war of all against all, even in the southern section of Manhattan that was most directly affected. When the Spanish parliament, the Cortes, was taken over by disaffected military people in 1981 under the noses of a television audience, there was virtually no non-military activity. Hobbes’s link between a frightening state of nature and specifically civil emergency is less plausible than a link between any major natural emergency and civil disorder.

Hobbes’s contribution to a viable theory of public emergency Although Hobbes seems to me to exaggerate when he insists that there is a strong, latent and permanent threat of overwhelming war in communal human life, he is right to make the value of public security central to political philosophy, and right to remind us that civil order and even ordinary decency are not impervious to disaster. In a relatively short time even the normally relatively peaceable can be reduced to savagery. Perhaps the disaster that typically reduces even developed states to brutal chaos is not civil war; perhaps it is some other kind of emergency. This does not take away from the plausibility of the central Hobbesian message: that what can be done to prevent the descent into this chaos ought to be done and ought to be done by government. Perhaps he goes too far in his emphasis on security or peace, attempting to make it the sole organizing good in a moral and political philosophy for individual life (see Leviathan, ch. 30), life in states and international life. He seems to confuse the overridingness of public security, inherited from the overridingness in individual morality of saving life, with the suitability of public security as a candidate for highest good in a traditional moral philosophy. That is, he seems to make of public security not only a value that trumps other public and private values when values conflict but also the organizing public

46

Public emergencies, black holes and sober Hobbesianism

value – that for the sake of which other narrower public goals ought to be aimed at. In particular, he prefers public security as an organizing value to happiness or ‘the good life’ or to the realization of what is essential to human beings in Aristotle’s sense. Public security will probably not do on its own as master value, even when stretched in ways Hobbes stretches it. But the attempt to make it play this role, or at least to make it play the role of pre-eminent public good in a scheme that allows for a variety of private ones – that attempt may be a reflection of the pretty sound thought that public security is normally overriding, and something that most people everywhere can agree has to be seen to by a polity. An important insight derivable from Hobbes can be put by saying that if life-preserving public security is able to be trumped in a scheme of values, or if the value of life is able to be trumped, that is often a reductio of the scheme of values. On the other hand – and Hobbes is acute in his discussion of these matters, too – public security and its value tends to be inconspicuous to its beneficiaries; it is not highly visible, partly because it is not immediately gratifying to anyone when it is enjoyed. In short, we tend to undervalue public security precisely at those times in which we are most exposed to its benefits. Again, we tend not to appreciate for what they are the non-military institutions of state, e.g., policing and taxation, which support public security; and the non-governmental, including economic, activity that depends upon public security. On the contrary, we are too quick to give precedence to values that conflict with public security – notably the value of doing what we unreflectively want, which is connected with individual gratification. To enlarge on the last of these points,20 Hobbes doubts that the great apparent value to each person of doing what he wants is really as great as it seems. If everyone has the right of judging what is best for himself and acting accordingly, if everyone has maximal liberty, no one can be criticized for planning, or prevented from embarking upon, the most ruthless and violent pursuit of self-interest. For each person to see this is to have a reason for endorsing a policy of doing only those things that are consistent with everyone’s security. The precepts of morality (what he calls the laws of nature) spell out this policy, according to Hobbes, 20

For a full discussion with appropriate work on the texts, see my ‘Hobbes’s Moral Philosophy’, in P. Springborg, ed. Cambridge Companion to Hobbes’s Leviathan (Cambridge University Press, 2007), pp. 128–155.

From unreconstructed to sober Hobbesianism

47

but they do not give anyone any assurance that most people will behave morally. Assurance depends on everyone’s knowledge of the presence of an effective coercive power; hence the need for a commonwealth constituted by an abandonment of the right to be one’s own judge of what to do. A sovereign takes over this right, giving the security and well-being of each equal weight, and declaring laws that deter violent encroachment. In this way, the exercise of freedom is constrained to be consistent with the personal security of each. Hobbes’s response to the dangers of unbridled freedom only makes sense if there is normally nothing, or not much, that each person is willing to die for, and if death in general is something most people are averse to. If people are generally willing to face death in the pursuit of their usual goals, and the pursuit of these goals is outlawed, the presence of a coercive force may not stop them. Similarly if people are inured to suffering. But in these circumstances the war of all against all will not look repulsive, and perhaps neither will the concepts of emergency or disaster have their usual range of application. In any case, as a matter of fact, people normally balk at actions which put their lives at risk, and refrain from projects that will harm them or involve violence. This means that however else they differ in their projects or beliefs, they can agree on the need for security, and on doing what they believe security requires. The place of security in a shared scheme of values can even mean that everyone can agree that otherwise attractive projects that threaten people with death or harm, even their own pet projects, are out. These things being able to be agreed, the existence of a sovereign who legislates only to protect the many can in principle be endorsed as well. Not that, as Hobbes sets things up, the sovereign has to be able to convince the public that what he thinks is necessary for security really is: as Hobbes sets things up, the public agree to abstain from judgement about what is necessary. Not only do they agree to abide by laws declared by the sovereign for the sake of security; they agree not to criticize or second-guess this legislation. As said earlier, they write the sovereign a nearly blank cheque. Whatever he decides is for the public safety, they agree to fall in with, even before they know what he will decide. The requirement of abstention from judgement and of bearing with a sovereign’s laws, whatever they are, may make it seem as if, in Hobbes’s theory, the sovereign is incorrigible about laws that will promote the

48

Public emergencies, black holes and sober Hobbesianism

public safety. In fact, however, Hobbes’s political philosophy contains the concept of a ‘needful’ or necessary law, and allows that some laws sovereigns have historically introduced have been bad laws because unnecessary: For the use of Lawes, . . . is not to bind the People from all Voluntary actions; but to direct and keep them in such a motion, as not to hurt themselves by their own impetuous desires, rashnesse, or indiscretion; as Hedges are set, not to stop Travellers, but to keep them in the way. And therefore a law that is not Needfull, having not the true End of Law, is not Good. A Law may be conceived to be Good, when it is for the benefit of the Sovraign; though it not be Necessary for the People; but it is not so. For the good of the Sovraigne and People, cannot be separated. It is a weak Sovraign, that has weak Subjects and a weak People, whose Sovraign wanteth Power to rule them at his will. Unnecessary Lawes are not good Lawes; but trapps for Mony; which where the right of Sovraign power is acknowledged, are superfluous; and where it is not acknowledged, unsufficient to defend the People (Lev. ch. 30, Tuck, ed. p. 240).

He is saying that laws are unnecessary which do not simultaneously benefit sovereign and people. Taxes that only enrich an individual sovereign, for example, enfeeble subjects to whom the sovereign has to turn for military recruitment and financing. So tax laws with this effect are unnecessary. Also unnecessary, to take a different kind of example, are laws that make military expenditure subject to the approval of people who short-sightedly begrudge the army necessary equipment, and favour tax cuts to benefit themselves. Laws that objectively promote public security, then, are the ones that Hobbes is arguing for, not any old laws introduced by the sovereign. So far, so good. Necessary laws will be those that promote security, and otherwise do not bind the subjects’ voluntary actions. Their harmless personal projects, and especially their wealth-creating projects, are lawful, too. This is not, as some writers have thought, because Hobbes is, between the lines, a sort of liberal, but because the freedom of subjects to engage in productive work and to earn taxable income is a condition of a government’s being able to mount a successful war effort in response to an external attack, and a successful police operation in case of internal disorder. Security justifies a certain amount of laissez faire, especially in economic arrangements, just as it is supposed to justify a great deal of non-economic regulation. The pursuit of private

From unreconstructed to sober Hobbesianism

49

projects is not allowed in Hobbes’s state because it is valuable in itself; but only because it contributes, indirectly or directly, to security or because outlawing it would contribute to insecurity. It is in this way that security is Hobbes’s organizing value, as opposed to a value that constrains an organizing value. Hobbes does not say that the many in the commonwealth may do what they like, so long as it does not endanger the commonwealth; he says the many may do what the sovereign permits, whether this coincides with what they would like to do or not. Individual appetite or desire is only the source of projects in the area where no sovereign prohibitions apply. Individual appetite is not the source of projects of government or public life. What replaces the disorder of individual appetite in public life is the order and unity of sovereign policy. This policy aims at the elimination of violence and the creation of conditions for industry and modest prosperity, both for the sake of security. People are free to do what law permits in a limited leisure time with limited disposable income, and in a political climate in which acting on strong appetites is discouraged. In other words, the sovereign’s regime introduces standards of behaviour quite different from those that would have emerged from the tumult of appetites in people living together and doing what comes naturally. In the very different and (to us) more familiar set-up argued for by Mill, by contrast, the maximization of utility through free action is the organizing value, and the harm principle is the constraining value. Hobbes is suspicious of a comparable setup in which the pursuit by each of felicity is given a value of its own, but the value of public security is allowed to confine permissible ways of pursuing felicity. This is because he thinks the simultaneous public pursuit of conceptions of felicity that exclude one another is itself a recipe for conflict, and many conceptions of happiness do exclude one another, or are taken by their pursuers to do so. If my worshipping my God means denouncing you for worshipping yours, and vice versa, we are put on a collision course by our choice of the religious life as the source of felicity. And we are on a collision course if your felicity lies in something offensive to me, or if my felicity lies in having something no one else has, and other people want that thing and mean to have it. Similarly if any perceived interference with an agent’s projects or any perceived disdain for them makes him turn nasty. No wonder that Hobbes is against institutionalizing the pursuit of happiness (as he understands

50

Public emergencies, black holes and sober Hobbesianism

happiness): the public pursuit of happiness by the many has too many invitations to disagreement and conflict. Now the fact that the pursuit of happiness can involve disagreement does not mean that it will, still less that disagreement will lead to conflict, unless people as a rule cannot live with disagreement. Hobbes seems to overdraw the consequences of differences over value. If there is a way for people to reflect on their appetites and discover for themselves that some of them are short-sighted, self-centred and so on, it may be that people can curb those appetites for themselves through critical self-reflection, and not by making themselves playthings of a sovereign in his unfolding of a legal cum economic regime. In that case the many do not have to make themselves vehicles for a sovereign will. In that case, something much more like liberalism is on the cards. Instead of the Hobbesian commonwealth, where the abdication of practical judgement is the instrument of self-restraint, self-critical agents learn to keep the peace by seeing the anti-social consequences of acting on some of their desires. The possibility of the self-critical agent means that objectivity in practical judgement is not only available to a sovereign who rises above his narrow personal concerns to identify with the common concerns of his subjects. Objective practical judgement may in principle be located in each of a multitude of agents who are able to rise above their personal concerns. It is not beyond such agents to delegate to a government an absolute discretion in matters of public security in abnormal times, but by the same token, these are not the sort of agents who at all times need to be contained. And so the politics of emergency need not always intrude on normal politics.

Full sobriety: a neo-Hobbesian framework Is there a way of reconciling Hobbes’s insights with the possibility of self-critical and self-restrained agents? A neo-Hobbesian framework for response to emergency starts from the public imperative of saving life and protecting people from injury. The means of saving life and preventing injury are enforced legal prohibitions on life-threatening actions and more minor assault. These will be a mix of statutes and ad hoc orders to meet periodic dangers. People are free to do what is not prohibited by these laws, and these laws should conform to Hobbes’s criteria for ‘good’ laws. That is, they should exact from people the

From unreconstructed to sober Hobbesianism

51

minimum that security requires. So far, so Hobbesian. But, and here neo-Hobbesianism begins to depart from Hobbes, people also have a capacity which suits them to having a say in the laws. This is the capacity for detachment from their irrational – e.g., life-threatening – appetites and impulses, which allows people to see the consequences of the playing out of those impulses, and which, when engaged, enables individuals to endorse laws that thwart those impulses. It is this capacity which permits Hobbes’s security regime to be democratized, that is, to involve subjects in framing the security legislation. Now the democratization of the security regime does not immediately make it a liberal regime. What people are free to do (as in unreconstructed Hobbes) is only what the demands of security (in the form of ‘good’ legislation) permit, and what is permitted may not coincide with the scope of the usual civil rights. Take the right to private property. Land and goods are, in the original Hobbesian set-up, notionally only in private hands. That is, they are only in private hands while the sovereign finds no overriding public need for them. When an overriding public need arises, they become what for Hobbes they always potentially are: public resources: the sovereign can rightly appropriate them at any time for public security purposes – for billeting armies or paying a police force. Free speech; freedom of movement; protections against arbitrary arrest; voting rights; all of these can be suspended or ruled out in the first place if from a detached point of view they seem unnecessary for the prevention of large-scale civil disorder or for repelling an external military threat. In particular, public expressions of a willingness to fight to the death for things other than public security as publicly judged are bound to be outlawed. The requirements of security, publicly judged, trump other considerations. But judgements about what security requires, if they are dispassionate and if they are to be expressed in ‘good’ laws, must be expressed in minimally rather than maximally exacting legislation. Even in the unreconstructed Hobbes, subjects cannot be so impoverished by taxation or hemmed in by movement restrictions that to obey they have to be party to depriving themselves of a living. Law cannot be so exacting that it disables the many, for in that case there can be no resources for public coercion or public defence. Again, when the law is subject to a test of looking reasonable to the suitably detached individual, it cannot be insulated from evidence of cause and effect. If an emergency edict places the citizens of Surrey under house arrest and

52

Public emergencies, black holes and sober Hobbesianism

seizes their bank accounts, that measure must in principle be intelligible as preventing some large threat to public security constituted by the citizenry of Surrey being on the loose and spending freely. If that is hard to make intelligible, because there is no reason to think that the unleashed citizenry of Surrey will disturb the peace, then it is not a presumption in favour of liberty but the inanity of the edict as a security measure that makes it unacceptable in a Hobbesian framework. Inane edicts are bad laws par excellence. There will be situations in which a prima facie case exists for the necessity of a security measure, enabling the measure to be adopted, but where the prima facie case subsequently crumbles, after the measure can no longer be reversed. Thus a war on a distant country can be started on the basis of what turns out to be bad prima facie evidence of the existence in the distant country of long-range weapons of mass destruction. Although this gets more justification in a Hobbesian framework than in a conventional liberal one (inadequately evidencedbased security measures getting the benefit of the doubt if they seem necessary to a government), neo-Hobbesianism bends to the strength of the evidence all things considered. This means that a neo-Hobbesian framework can allow that some security measures only seem to be necessary, even when there is some evidence in their favour. A neo-Hobbesian security regime could criminalize the wearing of national costume or singing of national songs, if rioting were regularly the result of singing the relevant songs or putting on the relevant costume. In criminalizing these things and preventing the expression of identity, it would not be killing off the people involved, even if each preferred death to not being able to wear the clothes or to not being able to sing the songs. On the contrary, it would be proving in a way that wearing or not wearing a costume, singing or not singing certain songs, is not the end of the world. On the other hand, if wearing a certain costume or singing certain songs were outlawed in the belief that riots would ensue otherwise, and this belief was unfounded, and could be discovered to be, the neo-Hobbesian framework would support deregulation in the area of costume and singing. The neo-Hobbesian framework I am outlining gives people legal latitude to become very attached to costume, literature, music, and a traditional territory – if these attachments are not life-threatening. But it also recognizes capacities in people that work against fundamentalist versions of those attachments, and it recognizes reasons for exercising

From unreconstructed to sober Hobbesianism

53

those capacities. The neo-Hobbesian framework credits each person with enough capacity for detachment to see that what is strongly valued should not normally be valued at all costs, or at the cost of anyone’s life in particular. This is what enables individuals to endorse laws that restrict liberty for the sake of security. But the same capacity also works against forming fundamentalist attachments in the first place. How can it seem to someone who is willing to subject himself to life-protecting law that continuing to live should matter less than wearing certain costumes or singing certain songs? In a Hobbesian framework the question of what one cannot live without tends to be taken literally. In a fundamentalist and communitarian framework what one cannot live without is what is necessary to maintain one’s strong stake in going on with a shared way of life, and this is different from what makes the difference between life and death in the primary biological sense. One of the most characteristic of Hobbes’s claims is that countless different things give people a stake in continuing life – which makes a politics aimed at securing a single kind of meaningful life hopeless – but almost everyone fears death and physical injury, and there are effective protections against both. So there are prospects for a politics – for agreement on a communal form of life – that banishes at least premature death and avoidable injury. The same framework gives people a basis for criticizing things they have a stake in if having a stake in those things increases the chances of death and injury. In the unreconstructed Hobbes, the capacity for legislative detachment is sometimes supposed to be entirely out of reach of the prescientific multitude (who, according to Hobbes, always exaggerate the costs of obedience), though it can theoretically be enjoyed by a sovereign. A sovereign is a person distinct from the many who is given the right to decide for the many. The sovereign is unaffected by the appetites and impulses of the many, which makes him clearheaded about what they ought to do or, more importantly, refrain from doing for their safety and prosperity. In short, detachment in the unreconstructed Hobbes consists of being a unitary subject separate from each of the many, who, because he is separate, can think impersonally and give equal weight to their points of view, and who can control their actions by commands (laws) they know they must obey or else risk death by breaking. Submission in the unreconstructed Hobbes consists of handing over control of those actions that affect public life and prosperity to

54

Public emergencies, black holes and sober Hobbesianism

someone who can decide for one dispassionately, taking into account not the strength of personal desires, but the cost in lives or injury of one action as against another. Now Hobbes himself gestures at the possibility of the kind of detachment I have been associating with a neo-Hobbesian position – personal detachment from one’s own passions, not just another’s. It is by dispassionately observing the passions one has in certain situations that one is supposed to be able to verify that Hobbes’s theory of human nature is correct.21 Hobbes apart, it is clear that a personal capacity for detachment is perfectly routinely engaged in ordinary life. It is engaged whenever one is at the receiving end of criticism, one’s own or another’s. It is engaged whenever one’s wife berates one for not doing enough of the housework, and one takes the criticism seriously, or when a campaigning group identifies some common public practice as damaging, that many members of the public subsequently acknowledge as damaging. Hobbes correctly makes the capacity for detachment one of the conditions for being a good legislator but incorrectly claims that the capacity is rare in human beings and rarely engaged in ordinary human life. A neo-Hobbesian position not only makes room for capacities of detachment at the level of individuals; it makes room for capacities for detachment in institutions. Even in the unreconstructed Hobbes the sovereign does not genuinely rule solo. He relies on counsellors and other officers of state, notably judges, and there are many norms in the Laws of Nature requiring impartiality in judges (cf. Lev. ch. 15, Tuck, ed. pp. 108–109). What is more, Hobbes recognizes (Lev. ch. 23) the need for the commonwealth to have an eye both to a home population and internationally (Tuck, ed. p. 169), so as to inform itself of threats to public safety from both sources. These points create a prima facie case for the recognition in Hobbes of the need for detachment and evidence-based policy making even for an absolutist sovereign. These elements of unreconstructed Hobbes survive in the Hobbesian theory eventually to be adopted in this book. 21

cf. Lev. Intro, Tuck, p. 10.

3

Liberalism with Hobbesian sobriety

Neo-Hobbesianism is more sober than Hobbes about the costs of largescale emergency. But it does not leave us with an adequate framework for life within the state. More things matter to communal life than security, even if they are tied up in some way with security. These include, in our own day, public health, education, religion, leisure, family life, meaningful work, political and cultural association, economic exchange, property, sport and the mass production and use of consumer goods, including entertainment. Hobbes’s conception of the good for the sake of which the state exists does not accommodate all of these things or enough of them in the right way. For example, the sovereign is supposed to guarantee only a modest well-being, enough for individual citizens to enjoy some benefits from working, and enough for manning and financing through taxes a force to defend against internal or external war.1 This may be a too narrowly conceived well-being, and security may not organize properly the goods that people can reasonably value. Not only is the purpose of the state unduly restricted in Hobbes; so is its presiding rationality. In particular, as soon as he recognizes a private capacity for detachment from the passions and for private practical rationality – exactly the faculty that makes human beings receptive to a science of politics – he fatally weakens his case for concentrating the practical rationality that matters to societies in heads of state. The political philosophy that is best suited to a plurality of subjects with practical rationality is liberalism. What I have been calling ‘neo-Hobbesianism’ is a way of driving unreconstructed Hobbesianism closer to liberalism by dropping Hobbes’s condescension toward the native reasoning capacities of human beings, and by abandoning his tendency to read potential war into even mild forms of human 1

For the textual details, see my ‘Hobbes on trade, consumption, and international order’, The Monist 89 (2006), 245–258.

55

56

Liberalism with Hobbesian sobriety

disagreement and competition. But neo-Hobbesianism is unsatisfactory if judged as an attempt to simulate liberalism. Although it is consistent with the pursuit of a wide range of goods that could also be pursued under liberalism, this pursuit is only permitted in virtue of the fact that prohibitions of those pursuits are ‘unnecessary’ for public protection. The fact that the pursuits are valued by people creates no presumption in favour of their being lawful, except in as much as, e.g., satisfied people are more inclined to keep the peace or fight in a defensive war against foreign aggressors. Again, there is no presumption against coercion in neo-Hobbesianism, so long as it is democratically endorsable. On both of these counts, but especially for its shortcoming of counting things as goods only if they are a means of collective protection, or permitting them only if their prohibition is unnecessary for the protection of the public, neo-Hobbesianism is only a superficial simulation of liberalism, and an unsatisfactory general political philosophy in its own right. At best it fits liberal societies in phases of emergency. It cannot claim, as Hobbesianism does, to be applicable in and out of emergency situations. Elements of neo-Hobbesianism can nevertheless be incorporated into liberalism. The neo-Hobbesian picture of people as the main loci of practical rationality is a staple of many liberal theories. And its scruples about fundamentalism, while harder to accommodate, are not impossible to reconcile with liberalism. To the extent that fundamentalist attachments are an emergency waiting to happen, they are open to regulation. They are open to counteraction by coercive laws if they produce violence, and they are open to counteraction by, e.g., methods of education and civic conventions that make people see their attachments as just some among others. A liberalism with Hobbesian sobriety expects citizens to be more self-critical than other liberalisms expect them to be, and perhaps to consider dropping or weakening strong attachments in the interest of co-operation. Liberalism with Hobbesian sobriety is also less tolerant than other liberalisms of the aggressive communication of strong attachments to those who reject those attachments. There is a connection between a liberalism with Hobbesian sobriety in normal times and neo-Hobbesianism in emergency times. In both cases, security of the person is taken to be prior to the exercise of liberties of, e.g., thought, expression and association. That is, it is taken to be a good that cannot be sacrificed for the sake of other goods. The

Liberalism with Hobbesian sobriety

57

main difference is that in neo-Hobbesianism security is more than a prior good. It is also the good for the sake of which all other goods are pursued, and the good with which other pursuits have to be consistent if they are to be permissible. In liberalism with Hobbesian sobriety, the security of the person is merely prior, and in normal times, at any rate in Western liberal democracies, this priority is not engaged, because the exercise of liberties typically does not threaten anyone’s security. The problematic areas for liberalism in normal times – the area of the emergency waiting to happen – is where exercises of liberty do not begin by threatening life but may come to do so – albeit with nothing like a black hole necessarily in the offing. How, if at all, can liberalism acquire Hobbesian sobriety without becoming illiberal? One way is Rawls’ way: security of the body is included or presupposed by the equal liberties – notably, the freedom of the person – protected by his first principle of justice. The problem with that first principle is that it allows liberties to be limited only by other liberties, when clearly they can be limited by the harm their exercise will do. Perhaps the first principle needs to be qualified by saying that security of the person is prior to and cannot be limited by liberties of speech and association. This approximates the unreconstructed Hobbesian view but suppresses its argument to the conclusion that the wide exercise of liberties of speech and association is an emergency waiting to happen. The Hobbesian argument is that, so long as they do not violate the security of the person, institutions can legitimately limit the exercise of liberties by force, the minimum effective limitation being the preferred one. Neo-Hobbesianism denies that the exercise of liberties by itself is an emergency waiting to happen, reserving this classification for the fundamentalist exercise of liberties. The fact that some people would rather die or resist violently than not exercise their liberties in a threatening way or in a way that aggressively defies the authorities to intervene is not an argument against security of the person or the minimal institutional measures taken in its name. Most liberals do not deny that when the exercise of liberty turns violent, coercion can be used by the state to restore the peace, but they sometimes balk at the pre-emption of violence by criminalizing attempts and conspiracies, and they give weight to the danger of seeing emergencies waiting to happen where there aren’t any. What is more, they think that the danger identified by Hobbes can partly be addressed by the cultivation of a civic virtue of tolerance. One does

58

Liberalism with Hobbesian sobriety

not have to be Hobbes, however, to believe that a civic virtue will be ineffective and that threats of the use of public force are indispensible to ward off common or garden and fundamentalist violence alike.2 Contractualism as worked out by Scanlon might be a way of moving neo-Hobbesianism and liberalism closer to one another. For example, contractualism is in a position to count the costs to nonfundamentalists of militant fundamentalist attachments, especially where these limit co-operation and also put people in danger. But contractualism has been developed as a theory of direct interpersonal obligation, and not interpersonal obligation mediated by institutions.3 A better framework for our purposes comes from Raz. In The Morality of Freedom and elsewhere,4 he relates the authority of institutions to their complying better than individual actions with reasons for action that individuals have. In particular, institutions can satisfy people’s basic interests or co-ordinate their pursuit of morally permissible goals better than individuals can acting ad hoc. Raz’s theory of institutions is embedded in a theory of practical reason that is compatible with sober Hobbesianism, and this feature of it above all recommends it as a vehicle for the approach I favour. Institutions in Raz can fulfil duties that correspond to some rights, where fulfilling rights is understood as the satisfaction of basic human interests. Basic human interests are naturally understood to include an interest in bodily integrity, freedom from avoidable pain and the means of survival. Although Raz thinks goals must aim at more than survival if they are to contribute to the pursuit of full-fledged wellbeing, and though the state exists for him as a means of multiplying options for the autonomous pursuit of well-being, survival is a condition of that pursuit. A basic human interest in bodily integrity and the 2

3

4

Physical separation of potentially conflicting parties may also be necessary. For the view that this can itself be the expression of a kind of tolerance, see Glen Newey, ‘Toleration, politics, and the role of murality’, in Melissa Williams and Jeremy Waldron, eds, Toleration and Its Limits: Nomos 68 (New York: New York University Press, 2008), pp. 360–391. Newey’s approach to tolerance seems to me to be broadly Hobbesian in spirit. For the relation between Raz and Scanlon on reasons, see Ulrike Heuer, ‘Raz on value and reasons’ in J. Wallace, P. Pettit, S. Scheffler and M. Smith, eds. Reason and Value (Oxford University Press, 2006), pp. 129–152. See The Morality of Freedom (Oxford University Press, 1986) subsequently abbreviated ‘M of F’ and Practical Reason and Norms (London: Hutchinson, 1975).

Liberalism with Hobbesian sobriety

59

means of survival might ground a right to security in Raz’s terms (M of F, p. 182), and this right might be among the rights that, as Raz puts it, are fundamental in that they ‘are part of the deepest level of moral thought’ (M of F, p. 255), A state’s recognition of this right might take the form of institutions for enforcing laws against assault and murder as well as health and safety legislation. These institutions might include armies and police forces, bodies for setting and enforcing standards of manufacture and hygiene, bodies for inspecting goods and services, licensing bodies and so on. These institutions, I am suggesting, might embody Hobbesian sobriety in Raz’s liberal theory. Other elements of Raz’s position – its perfectionism and communitarianism – clash with sober Hobbesianism. But, significantly, these elements may also be problematic from the standpoint of liberalism, quite independently of Hobbes. Raz’s liberal state exists to promote a moralized well-being, not just desire-satisfaction, and, by his own admission, as we shall see, state-sponsored perfectionism can lead to conflict among citizens (M of F, 429). Hobbes and perhaps even a sober neo-Hobbesianism would regard that as a decisive objection, but liberals could also find it problematic. Again, Raz’s liberalism is communitarian, and liberalism need not be, and, according to some liberals, shouldn’t be, communitarian. Communitarianism can legitimize some attachments to groups that are associated with fundamentalism. Finally, as we shall see, Raz is friendly to non-negotiable identifications of people with their personal projects and attachments (M of F, p. 384). A liberalism which legitimizes the feeling that the loss of a career project or personal attachment is close to a kind of death also seems to legitimize a kind of extremism in the preservation of these things, or at least to give rise to an over-roomy category of moral excuse, as we shall see. The elements of Raz that are in tension with Hobbesian sobriety, then, may not only have to be jettisoned to make his theory serviceable for my purposes in this book. They may need to be jettisoned in any case: the hospitality they give to fundamentalism is not just a problem for the Razian account when it is made a vehicle for a sober Hobbesianism: it is a problem for the unreconstructed Raz, and, more generally, for commmunitarian liberal accounts, at least those that attempt to reconcile non-negotiable group attachments with security. It is also a problem for theories that, like Raz’s, make certain personal commitments non-negotiable. If sober Hobbesianism is right

60

Liberalism with Hobbesian sobriety

about fundamentalism, then a liberalism that makes room for personal ground projects, strong group rights and practical reason needs to adapt itself to Hobbesianism, or at least go some way in its direction. In other words, some of the gains of juxtaposing the two theories may flow from Hobbes to Raz; they do not all go the other way. It is not as if the marriage of neo-Hobbesianism with Raz reduces Raz to a shell constituted by his theory of practical reason. Some of the Razian rights apparatus emerges intact, as does the centrality of autonomy – so long as autonomy is divorced from what I am calling fundamentalism. The elements of Raz’s liberal framework that are in broad agreement with sober Hobbesianism are: (1) its connecting individual reasons for actions with reasons for the existence of institutions; (2) its theory of a right as grounded in an interest in aspects of well-being; (3) its recognition that the autonomous pursuit of well-being depends on stable, non-violent social forms, some independent of state institutions; and (4) its recognition that conditions of autonomy involve internal critical and reasoning capacities that both individuals and the state have duties not to reduce and perhaps even to enhance. To begin with (4), the internal capacities seem to reduce individual susceptibility to countercultural fundamentalism; as for (3), it creates a kind of moral presumption against revolutionary disturbance of social forms (M of F, p. 427). These elements of Raz’s position accord well with Hobbesianism, both unreconstructed and sober. Again, the conception of rights in (2) makes it easy to ground a right to security, and (1) is a means of providing for the individual endorsability of duties and institutions corresponding to a right of personal security, but without the difficulties in consent theory that Raz brings out (M of F, pp. 80ff). Finally, (1) and (2) together seem to be compatible with the free individual pursuit of different kinds of morally permissible well-being – the defining characteristic of liberalism – and the usual liberal institutions. After enlarging on (1)–(4) and drawing them together to recapitulate a sort of sober Hobbesianism that can consistently be embedded in a liberal theory, I shall point out some tensions among (1) and (4) taken together and other elements of Raz’s theory, elements that I believe are less plausible than (1)–(4). These elements are what may need to be subtracted from Raz’s theory to make it more acceptable. The elements include Raz’s resort to a value of ‘loyalty’ in the personal pursuit of well-being. I take this to be a kind of fundamentalism about one’s

Institutions as legitimized by individuals’ reasons for action

61

personal beliefs and projects that provides the wrong kind of excuse for non-compliance with laws and non-cooperation with institutions. Then, as I will explain, there is Raz’s relativization of what is valuable independent of wants to historically evolved social norms.5 This, too, may need to be subtracted from liberalism with Hobbesian sobriety. In the same way, his tendency to value the social forms over biology will prove questionable.

Institutions as legitimized by individuals’ reasons for action Raz’s theory of institutions ties their legitimacy to their conforming to practical reason rather than consent or will.6 The sovereign is legitimate not if citizens will him and his powers into being and authorize exercises of that power, but if the reasons for which they submit to the sovereign – obtaining protection from other individuals and greater probability of prosperity through work – are better complied with by erecting the sovereign than through individual self-protection and work in the state of nature. Raz’s theory is also to the effect that, once established, institutions offer exclusionary reasons: reasons not to act on other reasons for action. In the case of policing institutions there is a reason not to ward off assault by individual threatening behaviour or retaliatory action, even though one might still have reasons for threatening behaviour or retaliatory action on some occasions when a policing institution exists. Presumably the exclusionary reasons never exist or lose their force if the institution is never effective or ceases to be effective. Perhaps in those cases, the institution never existed or no longer exists. And perhaps some institutions are designed so badly from the start that they are not intelligible as serving their supposed purpose. For example, a police or army that is recruited in such a way that it is easily infiltrated by criminals or a foreign enemy may never rise to the threshold of being a functioning institution and generating exclusionary reasons with any force. 5

6

For a careful (but, in my view, overly admiring) reconstruction of this strand in Raz’s liberalism, see the Second Edition of S. Mulhall and A. Swift, Liberals and Communitarians (Oxford: Blackwell, 1996), pp. 340–341; pp. 345–346. ‘Authority is legitimate only where conformity with reason is better and more securely assured by following authority than by acting on one’s own’. Raz, ‘Facing Up’ 62 S. Cal. L. Rev. 1 1988–1989, p. 1161 (Subsequent references are by page number to this article.)

62

Liberalism with Hobbesian sobriety

The view of reasons that underlies this view of institutions is summarized by Raz as follows: The reasons for an action are considerations that count in favour of that action. We can think of them as the facts, statements of which form the premises of a sound inference to the conclusion that the action ought to be done. (‘Facing Up’, p. 1155)

Generally, Raz writes as if reasons can support practical action even if a particular agent is unconscious of the reasons or would not recognize them as a reason for a particular action in their particular circumstances.7 There might be a reason in this sense for submitting to a sovereign for protection in the state of nature though everyone was too taken up with self-defence for such a consideration ever to enter anyone’s mind. In short, Raz seems to be a Realist about reasons: he takes them to exist and to contribute to sound arguments whether or not they are consciously acknowledged as reasons by agents. To illustrate, there might be reasons for a battered housewife to leave her husband or bring charges against him even if, through self-deception or the operation of other forces, she repeatedly decides to stay in the marriage and not co-operate with a prosecution against the man. Again, within the Razian framework there can be reasons for doing things that are not generated by wants, that exist in the absence of the corresponding wants, and that go against and outweigh wants agents have in a particular situation of action. Raz holds that duties are reasons of this kind (‘Facing Up’, p. 1196), but there could be reasons that are not straightforwardly duties. A case in point might be a reason for not eating when someone with life-threatening obesity feels an irresistible appetite for a peanut butter and banana sandwich that will kill them. There is a problem in unreconstructed Hobbesianism which Raz’s approach to reasons solves. Hobbes tends to argue in all of his political writings and especially in Leviathan that citizens cannot complain of unjust treatment at the hands of the sovereign, since they have authorized or willed that treatment by the act of transferring the right of self-government, and what is willed by an agent cannot be an injustice

7

Sometimes Raz calls these ‘guiding reasons’. See the introduction to his edited collection, Practical Reasoning (Oxford University Press, 1978), p. 3.

Institutions as legitimized by individuals’ reasons for action

63

to that agent.8 In Hobbes, the fact that every citizen agrees to let the sovereign be the sole judge of how crimes are punished is supposed to invalidate any claim from a citizen that a given punishment is unjust. Similarly, the fact that the citizen agrees to let the sovereign be the sole judge of what is necessary for public defence is supposed to invalidate a given citizenly claim that taxes raised for a navy are too high, or that forced billeting of troops in citizens’ homes is too invasive. The problem with this line of thought is that people do sometimes seem to collude with or submit willingly to agents who treat them unjustly. The uncomplaining battered wife may persuade herself that she deserves the violence or that the husband who meted it out was not himself when he lashed out. She may persuade herself of these things so often that the question of whether the battering behaviour is characteristic of the man has already been settled. Yet if she never resists the battering or refuses to bring charges against the man while conceding that the battering is bad behaviour, then the fact that she colludes does not make the battering all right. What one consents to or colludes with can after all do one an injustice. Things are no different if the battering begins after a marriage ceremony in which a woman promises to obey the husband, and the husband is only violent when he feels he has been disobeyed. The promise of obedience may be unacceptably servile, or it may reflect the background and unjust patriarchal assumptions of the traditional wedding service, so that the promise is, if not invalidated, then at least 8

Does this show that for Hobbes the sovereign can do no wrong? No. Hobbes has the concept of iniquity for the case where the sovereign taxes people only for personal gain or punishes people only out of personal dislike. In these cases, the sovereign acts in office like a private person looking after his own interests, and not, as the purpose of his office requires, in the interests of a whole citizenry impersonally regarded. When the sovereign acts impartially and for the good of the public, he acts for the reasons that individual agents had for transferring their right of self-government to a third party. Even then he is not infallible about means to the preservation of peace and modest prosperity. For example, he may take seriously a false but credible report of a planned military invasion, and therefore mis-time some vast military expenditure – with terrible consequences. In this case, though he acts on the reasons citizens had for investing him with power, he also acts on reasons that are significantly affected by error. In such cases, though the sovereign is wrong, he does not injure his subjects, according to Hobbes, and there is no reason for withdrawing obedience, since the sovereign does not turn his back on the purpose of the state – public safety – but only acts on that purpose ineptly.

64

Liberalism with Hobbesian sobriety

morally questionable or unreasonable. Again, the fact that someone has been promised obedience does not justify him in battery in the event of just any disobedience, still less battery in the event of the erroneous perception of something as disobedience. It does not justify this even if the disobedient person in question feels that she deserves it, and even if she made the promise in the belief that violent battery might result from acts of disobedience. Expecting unreasonable behaviour even when misperceiving it as reasonable does not make the behaviour reasonable after all. Even the promise to bear a beating quietly if one breaks a promise is unreasonable, if the harm that befalls the promisee is out of all proportion to the harm of being beaten.

Rights grounded in interests Reasons that are sufficient to generate a duty are rights, according to Raz’s theory. In The Morality of Freedom he commits himself to the existence of three rights that are of significance to both unreconstructed and sober Hobbesianism: the right to personal security, the right to life, and the right to free speech. Raz introduces the right to personal security as an example of a right that generates duties on everyone rather than a sub-group of agents. Some rights are held against the world at large, i.e. against all persons or against all with certain specified exceptions. Thus the right to personal security is the ground of a duty on everyone not to assault, rape or imprison a person. (M of F, p. 182)

The right to life, in its turn, is introduced as an illustration of the point that some rights generate some duties but not others. The right to life does not make it a duty on everyone to do whatever is required to save a life: Raz thinks it more likely that it generates duties not to endanger life. This is presumably because there might be arguments from the interests of the would-be life-savers to limit the demandingness of the right to life on them. The third right relevant to Hobbesianism that Raz introduces is the general right to freedom of speech. In relation to this right his point is that, being general, it does not identify all the circumstances of its application, and some circumstances generate reasons that override the general reason. ‘There is a necessary conflict,’ he says,

Rights grounded in interests

65

between free speech on the one hand and the protection of people’s reputation or the need to suppress criticism of the authorities in time of a major national emergency on the other . . . If in these circumstances the reasons against free expression override those in favour of free expression, then while it is true that one has a right to free expression, one does not have a right to libel or to criticize a government in an emergency. (M of F, p. 184)9

In ‘Facing Up’ he invokes emergency to illustrate the related point that the exclusionary reasons given by institutions and norms can sometimes be overridden. I always have a reason to keep a promise whatever other reasons I have for doing something else in the circumstances, but some of the other reasons can be overriding. Thus I may permissibly omit to keep a promise in an emergency (‘Facing Up’, p. 1155). The recognition of rights in practical reasoning and the invocation of rights in moral discussion is, according to Raz, a way of obviating recourse to what he calls ‘ultimate values’ in practical reasoning or moral debate. Rights represent intermediate but culturally authoritative premises in arguments to moral conclusions: Assertions of rights are typically intermediate conclusions in arguments from ultimate values to duties. They are, so to speak, points in the argument where many considerations intersect and where the results of their conflicts are summarized to be used with additional premises when need be. Such intermediate conclusions are used and referred to as if they were complete reasons. The fact that practical arguments proceed through the mediation of intermediate stages so that not every time a practical question arises does one have to refer to ultimate values is . . . of crucial importance in making social life possible, not only because it saves time and tediousness, but because it enables a shared common culture to be formed round shared intermediate conclusions, in spite of a great amount of haziness and disagreement among ultimate values. (M of F, 181)

In many liberal societies there is a recognized core right of free speech that can typically be exercised for political participation and political self-determination without libelling anyone or undermining a legitimate government. This fact provides cultural support for the authority of the right, even though a more expansively formulated version of 9

The limitation of free speech by emergency is a commonplace in liberal thought, though with different workings out. For Rawls on free political speech by emergency and ‘clear and present danger’, see Political Liberalism – expanded edition (New York: Columbia University Press, 2005), pp. 353ff.

66

Liberalism with Hobbesian sobriety

the right admits of conflict with other rights, and even though there are controversies in different societies over the scope of the core right. Again, the fact that a minimal interpretation of the right to life coheres with the interests of potential life-savers in their own lives is one reason why the right to life in its minimal interpretation has so much practical authority. Being minimal is its way of resolving conflict. Or, in other words, the minimal interpretation is the distillation of our shared understanding of what the right to life normally conflicts with, and how the conflicts can be settled. When in unusual circumstances even it cannot be complied with, say because it is either his life or mine and there is only one means of saving either, it can be overridden. The rights to personal security10 and the right to life are, however, more than examples of how interests can generate duties on everyone or on only some people, respectively. They also seem to meet the conditions for being the special sort of right that Raz calls a morally fundamental right. To be morally fundamental, a right not only has to be based on an interest in the right holder, but on the fact that that interest is not derived from another person or another interest (M of F, p. 192). The fact that each of us has an underived interest in not being attacked or in not being murdered may make the class of addressees of the right and the corresponding duty-holders all-inclusive, and may make the duty categorical rather than conditional. At one point in The Morality of Freedom Raz includes the right to personal security in a list of rights that he says are recognized by ‘every moral theory worthy of serious consideration’ (p. 255). ‘These may well be fundamental rights’, he says, ‘in the sense that they are part of the deepest part of moral thought’. But they also seem to me to be fundamental rights in Raz’s more technical sense, and unlike other rights conceived as premises intermediate between controversial ultimate values and conclusions of practical reason, they seem directly and immediately based on ultimate values – of being free from pain and disablement, and of survival – ultimate values, what is more, that seem to be uncontroversial. 10

Personal security in the relevant sense is primarily personal safety from (personal) attack. But it can also extend to personal safety from publicly mitigatable calamity (such as flooding or mild earthquakes). For a much sharper distinction between security and safety than I think is tenable, see Zack, Ethics for Disaster (Lanham, NJ: Rowman and Littlefield, 2009), pp. 90ff.

Autonomy and social forms

67

The rights that we have just seen Raz calling fundamental are not liberal rights, but rather rights that, according to him, illiberal but ‘humanist’ moralities could share with liberal ones. Distinctively liberal rights – such as freedom of speech and freedom from discrimination – are justified by interests of each of the rights holders in a certain kind of public culture (M of F, p. 256), a public culture which promotes a more than personal well-being, that is, a kind of well-being which is a public good (M of F, p. 256). In other words, liberal civil rights derive from the interests we each have in the contribution of society to the range of goals we can effectively pursue, as opposed to the satisfaction of biological needs. Raz distinguishes between interests in, on the one hand, biological life and the satisfaction of the biological needs, and, on the other hand, interests in having lives that we can be the authors of. These latter interests ground civil rights and the corresponding duties, and a culture in which these duties are discharged promotes a richer kind of wellbeing than that which keeps people alive and biologically functioning. It is richer in involving goals in addition to needs, and goals which may be essentially social or interpersonal rather than, as biological needs are, merely personal (M of F, ch. 12, esp. pp. 294ff). This grounding of liberal rights is a sign of the anti-individualism of Raz’s liberal theory, and it connects up with his perfectionism. The anti-individualism is also the part of his theory that is in tension with what we already have before us. I shall return to this tension.

Autonomy and social forms I criticized unreconstructed Hobbesianism for taking too little account of custom, and overplaying its claim that weak states are dire emergencies in the making. The weakening or disappearance of sovereignty is supposed to return people to the war of all against all, no matter how second nature a certain kind of middle class civility has become during the time that sovereign authority has been maintained. Hobbes imagines that ‘good manners’ or peace-promoting outward behaviours (cf. Leviathan, ch. 11)11 make sense only when each person is not their own judge of what to do for protection and prosperity. As soon as there 11

For more on Hobbes on manners, see my Hobbes (Routledge, 1986 and 1994), pp. 103ff.

68

Liberalism with Hobbesian sobriety

is no deference to a judge or ruler who sets a standard of behaviour and can enforce it, then, according to Hobbes, no one can be blamed for departing from that standard, if they think that their life or well-being depends on it. Of course, it does not follow from the fact that one is in circumstances in which one cannot be blamed for doing A that one will do A in those circumstances. On the contrary, if doing A goes deeply against the grain, e.g., there is strong countervailing custom, one will not do A even where it is permissible. Hobbes’s point is that manners are variable, and that even people who customarily behave well can reasonably be drawn into a violent competition started by those with bad manners. Whatever one’s manners, the incursions of a ruthless and vainglorious few can make it deadly not to engage in pre-emptive self-defence – at any rate in the absence of an authoritative public institution for defending people. Hobbes’s argument depends on manners being able to vary according to the different constitutions and experiences of individuals. So conceived, manners are a pattern of individual behaviour. People can exhibit similar behaviours if their constitutions and experiences are similar or if they are all credibly threatened with punishment for not behaving in a preferred way. What manners so conceived do not seem to amount to is a common culture – that is, a kind of temporally extended unforced mutual accommodation through conventions and institutions of different personal ways of life in a single geographical space. A culture can have a life of its own alongside state institutions; and sometimes it can exert a force when state institutions lapse, or where their reach or power is very limited. A culture can also survive and have an influence outside its home state, as when a colony or expedition that is for the most part autonomous reproduces some of its home culture on the moon or in the wastes of Antarctica. To the extent a common culture transcends ‘manners’, Hobbes’s theory seems not to acknowledge it. Hence the exaggerated claim that people who survive the dissolution of even quite a venerable state immediately revert to the same state as people who have never lived in a commonwealth. Raz thinks that modern liberal individualism also reckons without culture in a certain sense. While it acknowledges that well-being consists of an individual’s success in activities organized by a goal that organizes and pervades that individual’s life, it tends to deny or .

Autonomy and social forms

69

overlook the fact that the understanding of this success is shaped by forces outside the individual. As Raz puts it: A person’s well-being depends to a large extent on success in socially defined and determined pursuits and activities. (M of F, p. 309)

To illustrate what he means here, someone whose life is organized by being married to a certain woman, bringing up three children and working and becoming an executive in a large insurance company does not unilaterally set the conditions for succeeding in the marriage, in parenting and in rising to eminence in a big business. He works within social forms that he does not invent and that he is not entirely free to depart from. Even if his marriage, parenting style, and business are unconventional to the point of being unique, they do not remake marriage, parenting and business, and some of the standards of a good marriage, such as its being lasting, or of good parenting, such as its producing children who are independent by the time they are adults, or of commercial success, such as keeping a business profitable, cannot be set aside, even when one places one’s own stamp on a marriage, on raising children and on business. Raz goes further than to claim that social forms limit what an individual can do while still engaging in a life-organizing pursuit. He claims that life-organizing pursuits can only ever be inspired by existing social forms of some kind: The thesis merely sets a limit on what comprehensive forms can be valuable for any person. They can be valuable only if they can be his goals, and they can be his goals only if they are founded in social forms. (p. 310)

One reason that life-organizing pursuits for individuals can come only from social forms is that many (and perhaps all that take the form of the conventional professions and roles) presuppose social institutions. The other, deeper reason, is that all comprehensive goals are realized by habituation, habituation that either cannot be brought about solo, or whose conditions for success are evolved in the practice of many people. To take a distinctive example that Raz uses for another purpose, although it is possible to be a solo bird-watcher, bird watching is not just a matter of being a sighted person who gets a bird into his visual field. It is intimately tied up with a collaboratively arrived at bird taxonomy, with a collaboratively arrived at knowledge of the habitats

70

Liberalism with Hobbesian sobriety

and migration patterns of birds, with the knowledge and appreciation of the distinctive plumage, colouring and other characteristics of birds, with a sensibility that operates by taking in nature and not intervening in it, and so on. Since we owe the comprehensive goals on which our well-being depends to social forms, there is something perverse, if not wrong, about demolishing them. Hobbes claimed that in resorting to international war or revolution we irrationally do away with all the beneficial science and technology, division of labour, and prosperity that peace makes possible. Raz’s line of thought tells particularly against a kind of cultural revolution that would take away the conditions for having comprehensive goals: Since values are grounded on concrete social forms there is no room for radical political action to secure a fundamental change of social conditions. Politics is the art of gradual amelioration. (M of F, p. 427)

This is not exactly Hobbesian conservatism, but since for Hobbes any stable social order, even one that departs from his preferred design for a commonwealth, is better than none, the two positions overlap here.

Reason and critical abilities An important difference between unreconstructed Hobbesianism and sober Hobbesianism lay in the question of whose capacities for practical reason count toward public decisions. In unreconstructed Hobbesianism, individual practical reason may operate only where law – the expression of the sovereign’s practical reasoning for the multitude – is silent. Since Hobbes thinks laws are bad if they are not necessary for maintaining peace and permitting prosperity, and since they are self-defeating if they take away or interfere with the creation of a modicum of personal wealth – the raw material of public military spending – he can be understood to recommend quite a lot of laissez faire in matters of work and industry. Practical reason is employed beneficially if turned to the manufacture of things that can save labour or that can be traded for a profit, so long as the labour saved or the profit is not channelled into challenges to authority. People are free to employ reasoning in minding their own business, but not in

Reason and critical abilities

71

second-guessing decisions in matters of state, or in valuing institutions like taxation or conscription by their unwanted consequences for particular individuals. The objection to this limitation of the use of practical reasoning is that it comes in an argument that is supposed to engage a much less fettered faculty of practical reasoning. Leviathan was not meant for a readership of rulers alone. De cive was explicitly addressed to subjects. Its reasons for obedience and its arguments against listening to seditious opinions were supposed to be intelligible to some of the people whom the theory asked to refrain from judgement in matters of state. It is true that Hobbes regarded his political treatises as books of teaching which led people step by step through practical argument rather than liberated their practical faculties.12 Even so, if this teaching could take effect, why could not people with a disciplined practical reason be allowed to exercise that practical reasoning once the lesson had been taken in? In unreconstructed Hobbesianism this is an open question. In sober Hobbesianism it is rhetorical. People do have or can have the necessary rationality, and this is an argument for democratizing the Leviathan. The three most important requirements of practical rationality from a sober Hobbesian point of view are (1) the ability to detach oneself from one’s appetites and ask whether there are further reasons for satisfying them; (2) the ability to see one’s own appetites and aversions as only some among others, widely distributed among all of the people one lives with or near; and (3) the ability to see that the satisfaction of appetites now or soon is not necessarily better than their satisfaction later. These abilities enable one to criticize and even weaken the associated appetites, and therefore to make decisions without being at the mercy of appetites. In short, critical abilities in each person can make it possible for people to think about public policy in the more impartial way that Hobbes associates with sovereignty. Instead of thinking for others without their appetites and identifying with their interests in survival and prosperity – as a sovereign is supposed to – one thinks for oneself, but without being carried away by the fact that some of the appetites calling for satisfaction are one’s own. Instead, some common 12

See my Hobbes (Routledge, 1986 and 1994), ch. 10, and ‘Hobbes’s Persuasive Civil Science’, Philosophical Quarterly 1990, reprinted in G. Slomp, ed. Thomas Hobbes (Ashgate, 2008).

72

Liberalism with Hobbesian sobriety

denominator reachable by detachment comes to put different appetites and aversions on a level. Points (1) – (3) do not have counterparts in every form of liberalism. Different varieties of liberalism carry with them differing conceptions of practical rationality, and not all versions of liberalism seem to give the same value to the capacity for detachment from and critical reflection on appetite and passionately felt loyalties. In the same way, not all versions of liberalism give weight to institutions or policies that encourage critical reflection. Since the passionately felt loyalties counteracted by personal critical reflection can include those that generate fundamentalism, not all versions of liberalism pre-empt or counteract fundamentalism. Not all versions of liberalism, for that matter, make much of other capacities for self-restraint, such as the capacity to forgo fattening food, or to forgo purchases until one has saved the money needed to pay for them.13 Although liberalism implies that life within the state should to the greatest degree possible be determined by private choice, liberals disagree over whether private choices are to be respected regardless of how they are arrived at, or whether they ought to be informed, self-critical, objectively in the interest of the chooser, or all three. Liberals also disagree over whether, and if so, when, the state has a role in improving the outcomes of private choice by restricting liberties or excluding certain choices by force. The difference between the Hobbesian and the liberal positions is partly to do with whether coercion by the state is a first or last resort in the response to peacedisturbing free expression or free association. But the difference is also connected with the character of the threats regarded by each position as the most urgent to prevent. Hobbes tended to worry most about sedition – exercises of freedom intended to, or with the potential to, destabilize government. Neo-Hobbesianism emphasises the danger from projects or attachments on which people are willing to stake their lives. These attachments can lead to violence without the violence leading to the overthrow of government. Mill and other liberals concerned with tolerance sometimes worry about officious intervention and its limits. Should I prevent someone walking on a bridge that is about to collapse? Yes, Mill says, if he is unaware of the condition of the bridge: 13

For a theory that does, see William Galston, Liberal Purposes: Goods, Virtues and Duties in the Liberal State (Cambridge University Press, 1991).

Reason and critical abilities

73

the high risk of harm makes the intervention justifiable. Other cases are less easy to decide. Should I do or say something if two people in a bus I am riding on have a loud conversation in which they express strongly racialist sentiments? Differently, should I do or say anything if two people on a crowded public beach at midday decide to have sex? For the most part I set aside questions about personal interventions in non-life threatening situations and concentrate on interventions by the state. Many jurisdictions have laws against having sex in public places, and some punish expressions of racial hatred without necessarily criminalizing one-off outbursts on buses. Since my argument against the unreconstructed Hobbes has been to the effect that practical rationality in each of the many and not just the sovereign can tell against violence and the ruthless pursuit of self-interest, against sedition and against other sources of harm, including public harm, I am interested in versions of liberalism that concede that personal choice is sometimes defective. I am interested in versions that also insist that personal choice can and should be improved, if possible by agents themselves, but, failing that, with the help of state institutions. This is a modestly perfectionist position. The perfectionism in liberalism with Hobbesian sobriety implies that the answer to the possibility of large-scale violent conflict is not the delegation of all powers of control to a sovereign but the cultivation of personal powers of detachment as a basis for restraint, tolerance and co-operation, and, where these give out or fail to be formed, the introduction by democratic means of coercive laws that prevent the violent pursuit of particular goals. A modestly perfectionist liberalism with Hobbesian sobriety differs from neo-Hobbesianism by making the use of public coercion conditional on the failure of self-imposed norms of conflict prevention. By making coercion a last resort, it breaks from Hobbesianism – neo- or unreconstructed. The use of perfectionism in liberalism with Hobbesian sobriety will emerge much later on, in Chapter 7. Can Raz’s form of liberalism, which is in tune with unreconstructed Hobbesianism up to a point, which is in tune up to a point also with the perfectionist version of neo-Hobbesianism, also address problems raised by fundamentalist attachments? If liberalism came with scepticism about the very category of non-negotiable goods, and if it developed institutions for calling into question claims that particular values were worth fighting or dying for within a liberal state, then its

74

Liberalism with Hobbesian sobriety

anti-fundamentalism might be beyond question. But liberalism itself sometimes seems to contain a category of non-negotiable goods – usually implicit in the idea of inalienable rights, and liberals of some kinds claim that a failure to respect those rights can justify (violent) rebellion even against a state that claims to be liberal.14 A Razian theory that incorporates Hobbesian insights can address this problem if it adopts the sober Hobbesian diagnosis of fundamentalism as a source of harm, and if it retains the basis in Raz’s theory of reasons for saying that rights can be limited or overridden.

The strains in Raz I now come to problems with Raz’s communitarianism and his treatment of personal ground projects. The implausibilities associated with these strains give us reason to depart from Raz in the direction of Hobbesian individualism and anti-fundamentalism, but without losing Raz on reason, institutions, rights, and up to a point, autonomy. Raz thinks (M of F, pp. 404ff) that both the state and individuals have duties to create a capacity for autonomy, where autonomy is understood not as choice from a position of detachment from unwilled appetite, the present time and the self, but as an undetached choice of life-organizing pursuits made available by social forms. Some lifeorganizing pursuits – Raz’s example is a gambling career – are morally bad and are to be discouraged, both by the state and interpersonally, while others that are not immoral are supposed to be made available, whether or not everyone approves of them. Personally creating a capacity for autonomy in one’s companions or creating a capacity for it through perfectionist state action is more than a matter of keeping open life-options thrown up by social forms, and more than a matter of, as Raz puts it, standing back and refraining from coercing or manipulating other people: 14

Preamble to the UDHR: . . . ‘Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law . . . ’

The strains in Raz

75

There are two further categories of autonomy-based duties to another person. One is to help in creating the inner capacities required for the conduct of the autonomous life. Some of these concern cognitive capacities, such as the power to absorb, remember and use information, reasoning abilities and the like. Others concern one’s emotional and imaginative make-up. Still others concern health, and physical abilities and skills. Finally, there are character traits necessary or helpful to a life of autonomy. They include stability, loyalty and the ability to form personal attachments and maintain intimate relationships. (M of F, pp. 407–408)

These are a mixed bag of autonomy-promoting capacities, and, as will emerge, Raz’s understanding of them may not cohere with other elements of his doctrine. Greater coherence is achieved by driving the relevant account in the direction of sober Hobbesianism. I start with the cognitive abilities among the inner capacities mentioned in the passage just quoted. Presumably they include the capacities for detached reflection that I have already associated with neoHobbesianism, for these, combined with reasoning, might reveal to someone that his life-plans have certain shortcomings from the standpoint of an ideal of autonomy. For example, suppose that it emerges that someone’s life-plans are derived from some commercially promoted stereotypes that advertising has made attractive for him. Perhaps this reconstruction of the source of the attraction of the life plan makes the agent feel that to go on being attached to it is to be in the control of the commercial interests, whereupon the life plan becomes unattractive to him, and he stops trying to realize it. Is this not a step in the direction of autonomy? Presumably it is. But similar patterns of reasoning are available to undo the attraction of many of the legitimate comprehensive goals that Raz thinks we owe to social forms. For example, if the goal is to practice some high-status profession, who is to say that by pursuing it we are not merely becoming the playthings of our social class? Social forms start to look on reflection like possible underminers of autonomy rather than mere determiners of its varieties. Of course, it is sometimes possible to reason one’s way out of some of the lines of thought that lead to this conclusion. A life-organizing profession that is socially approved unthinkingly or promoted for profit, may, independently of those things, be worth practising. Medicine, for example, saves lives, and the fact that it does is a good reason for pursuing that profession, even if what motivates many people to pursue it in many

76

Liberalism with Hobbesian sobriety

countries is the fact that it comes with a very high income, prestige, and easier membership in fine country clubs. In this way medicine is autonomously pursuable even if its extraneous attractions account for most of the recruitment to it. The residual and perhaps destabilizing question raised by Raz’s theory can be put by asking how far detachment from social forms is supposed to be possible through reason. If we are supposed to be able to adopt life-organizing goals from an intellectual position outside social forms, then we seem to be thrown back into a kind of individualism, which Raz rejects, while if we are not able to detach ourselves from social forms, we may not be able to adopt the relevant life-organizing goals in cognitively rigorous ways. In the latter case, if we are autonomous at all, we seem not to live according to reason. I shall argue that detachment from social forms is possible to a greater extent than Raz allows, and that the resulting individualism, with its allowance for reasons more basic than, and independent of, social forms, is to be preferred to Raz’s alternative.

Conservatism about social forms vs. perfectionism vs. living in accordance with reason The Razian framework implies that certain actions and life plans are only apparently worth doing or pursuing. Some are based on erroneous information; others are immoral, others make sense only in the light of appetites or wants that might be better for an agent to eliminate than to satisfy, even though satisfying them might not be strictly immoral. For example, someone whose passion in life is building up the biggest collection in the world of objects touched by one of the four Beatles, or someone who adores reconditioning steam-powered vehicles, may not have an immoral passion, but there might be many demands and possibilities in life – such as those arising from her marriage or parental role – that indulging this passion might conflict with, and that would be wrong not to meet. This is discoverable by reasoning. If it is discoverable, then a reason for choosing a different passion or limiting its pursuit can in principle lead the agent to choose accordingly and choose autonomously. But what if similar patterns of reasoning called in question parenting and marriage themselves – the social forms whose demands tell against the Beatles collection or the steam-powered-vehicle restoring? What if

The strains in Raz

77

marriage or having a family themselves appears to be the pre-packaged and routine options of the herd? In other words, cannot social forms themselves, which Raz seems to think are the relatively fixed limits of choice, not themselves be objects of choice, e.g., from the vantage point provided by philosophy? I do not think Raz has an answer to the question in The Morality of Freedom, except in the form of the unpersuasive claim that any other available choices are necessarily the product of social forms. A Hobbesian framework, by contrast, does not imply that we reach bedrock in justifications of life-organizing choices when we reach the social forms that give rise to them. This is because the social forms themselves can sometimes be questioned or endorsed from the point of view of the value of life, the disvalue of pain, and other biological sources of value. In trying to revalue downwards the values generated by the biological needs and revaluing upwards the values generated by goals, Raz does, I think, commit himself to an authority for social forms that does not come from reason but from their simply existing outside personal choice and constraining personal choice. This is not an authority that is easy to understand. Even if we perforce live in ways that are not entirely chosen, and that are in part the residue of a tradition or the unwilled build-up of a culture, that does not mean that we cannot imagine ourselves, or apply practical rationality to, changing a culture so that more and more is the result of choice, or at least is endorsable after the fact. Perhaps there are rational limits on how much we can wish social forms to be subject to choice, but Raz does not seem to me to indicate what they might be. In any case, perfectionism is naturally understood as saying that one ought to revise social forms there are reasons against, and Raz is a perfectionist. Can he be both a sort of conservative about social forms and much of a perfectionist? As we have seen, for Raz, a general capacity for autonomy in others is supposed to be cultivated by both the state and by one’s companions in a social order. The state’s role for Raz is to add to the life-organizing options available to individuals, while discouraging, or perhaps even coercively prohibiting, immoral life-organizing options. Adding to the available options is presumably a matter of the state’s promoting literacy or more sophisticated kinds of education, redistributing income, undoing discriminatory social forms, and introducing public health reforms – to name some of the most likely

78

Liberalism with Hobbesian sobriety

measures. State discouragement of immorality could consist of aggressively enforced laws against domestic violence, trafficking in drugs or people, gambling, or racial segregation. Or, to name a measure that cuts across the encouraging/discouraging distinction, economic redistribution might be encouraged by aggressively enforced legal prohibitions on tax-evasion. These policies give an indication of what a perfectionist state along the lines Raz is recommending might do. State perfectionism is an element in Raz’s liberalism that is far removed from unreconstructed Hobbesianism. Hobbes thought that one could alter the forces acting on the passions in such a way that violence could be eliminated in a particular population, but as we have seen, he did not think this made people morally better. Moral value in Hobbes is a matter of what people inwardly will, and whether those willed things agree with the rational precepts he calls ‘laws of nature’. An important message of Hobbes’s politics is that people may excusably fail to follow those precepts in outward actions, because doing so is too dangerous. All the state does is to reduce the danger of outward displays of morally required behaviour by coercing some of it and discouraging aggressive exploitation of anyone who displays it; the sovereign does not make people inwardly committed to peace as well. Hobbes did not describe a form of sovereignty over people’s wills or minds. He even realized that trying to do so could be counterproductive, because of agents’ feelings of being torn by what they thought were the conflicting demands of God and the sovereign. A way in which Hobbes removes this tension is by interpreting religious obligations in such a way that they can be met in the mind and not in outward behaviour. If, despite oneself, one has to behave outwardly in a way that one would not want to and that might displease God, that is no offence against God, since one does it against one’s will, and God can see as much. On the other hand, the fact that one complies with one’s secular obligations unwillingly is not a matter that the state ought or can inquire into, according to Hobbes, since it can know about and regulate only outward behaviour. Sober Hobbesianism is friendlier than Hobbes himself to perfectionism – at least where perfectionism is a matter of individuals rather than the state making choices that limit conflict. Raz’s perfectionism promotes autonomy through the encouragement of sometimes competing ways of life, and through the discouragement of some existing ways of life. He realizes that state-perfectionism

The strains in Raz

79

can lead to civil strife and so fail in practice, but he has a puzzling diagnosis of what makes for a failed perfectionist intervention. The pursuit of full-blooded perfectionist policies, even of those which are entirely sound and justified, is likely, in many countries if not all, to backfire by arousing popular resistance leading to civil strife. In such circumstances compromise is the order of the day. [The compromise] will confine perfectionist measures to matters which combine a large measure of social consensus . . . Such compromises promote freedom from government, . . . because the adverse circumstances show that an attempt by government to achieve more freedom will achieve less. (M of F, p. 429)

Raz is not saying that the civil strife that results from perfectionist intervention is bad because civil strife takes life or causes injury and other kinds of physical harm. He is interpreting civil strife (or perhaps the government crackdown which civil strife provokes) as a limitation on freedom, and claiming that premature perfectionist intervention is bad because it tries to enlarge freedom and ends up, through the civil strife it produces, reducing it. The general lesson for governments of such failed interventions, Raz says, is to act in ways that agree with a social consensus, or that only modestly try to stretch it. This advice agrees with Raz’s general disinclination to tamper with social forms or a culture broadly in keeping with the value of autonomy. The problem with this advice about how to target an intervention is that it seems to take the perfectionism out of it. The more an intervention agrees with an already existing consensus, the less it is enlarging freedom and the more it is, if it is doing anything at all, revealing freedom that was larger than suspected. In relation to successful and failed perfectionist interventions alike, success and failure cannot necessarily be judged in terms of enlarged freedom. In certain cases, the cautionary treatment of perfectionist intervention has to be justified by its consequences in the category of pain, injury and related concepts. This sort of justification is more readily forthcoming from Hobbes than from Raz. Although Raz is sober about the civil strife that arises from failed perfectionist interventions, he is not sober for the right reasons. In this area Hobbesian sobriety is more apt than sobriety based on a net decrease in freedom.

Razian insobriety about personal projects One way in which autonomy is increased, according to Raz, is through the state’s enlargement of people’s life-organizing options. Another

80

Liberalism with Hobbesian sobriety

way it is increased is through the state’s or other people’s help in the creation of the character traits necessary or helpful to a life of autonomy. They include stability, loyalty and the ability to form personal attachments and maintain intimate relationships for the pursuit of life-organizing goals. (M of F, p. 408)

Raz connects loyalty with what Bernard Williams has called integrity15 – the value that arises from a kind of personal attachment to a person or project that not even the demands of impersonal morality can override. According to Raz, one can fail to be autonomous by not dedicating oneself enough to a project or person: . . . [E]very pursuit has its form, according to which certain forms of behaviour are disloyal to it, incompatible with dedication to it. These are the ones which indicate more than a change of heart. They may come of that, but they are, if persisted in, the marks of failure. Integrity consists, in part, of loyalty to one’s projects and relationships. Compromising one’s autonomy exacts in these ways its own price. But what has it to do with autonomy? . . . The connection is in the kind of failure it is. It is a failure of fidelity which sometimes raises the doubt whether an agent was ever truly committed to a project . . . The failure to make choices through lack of initial commitment disguised under the flurry of an initial infatuation, does diminish the autonomy of an agent’s life. (M of F, p. 384)

This line of thought seems wrong to me. It is true that something is not really being pursued if the agent’s heart is not in it. And it is possible for an agent self-deceivingly to ascribe whole-heartedness to himself when he is in fact only half-hearted. But do these facts add up to a failure of autonomy? It is hard to see that they must. After all one can choose autonomously and hastily and with incomplete information. In any case, a failure of integrity that takes this form is not at all what Williams uses to challenge impersonal morality. Williams is interested in pursuits that define who one is; the fact that they cannot be abandoned without the disintegration of the agent is what is supposed to make it unreasonable even for morality to ask one to abandon them. If morality does ask this of us, it gives up its defining task of guiding agents in life in favour of the incoherent one of 15

See e.g. Williams’ ‘Critique of Utilitarianism’ in J. J. C. Smart and Bernard Williams, Utilitarianism For & Against (Cambridge University Press, 1973), pp. 117ff. Raz’s development of Williams comes at M of F, pp. 284ff.

The strains in Raz

81

making demands that make agents self-destruct – alienate themselves from self-constituting life plans.16 I have elsewhere argued at length against the idea that commitments literally determine identity or individuate the life one has, and there are ways of incorporating central projects and attachments in moral life without Williamsesque integrity.17 Some of those ways are institutional. Legal protections on the pursuit of family life, liberties to end marriages, liberties to leave employment and other help with changing course in life are some of the aids to living with integrity afforded by liberalism. But these have no particular connection with Williamsesque integrity, that is, identification with persons or projects such that to abandon them verges on a kind of suicide. I shall argue that Raz’s commitment to this form of integrity is highly questionable, and that it should be dropped. Dropping it brings it closer to sober Hobbesianism. That Raz seems to endorse Williamsesque integrity comes out not so much in the passage just quoted, which is open to an anodyne interpretation, but in Raz’s theory of excuses. He is trying to explain when acting as one is coerced to do is justified and when it is excused. Not all forced actions are justified. A person may be forced to act immorally, as when a shipwrecked sea captain abandons many passengers to certain death in order to save the life of his only child. Whether or not such action is excusable depends on further moral views, the reasons for which have little to do with coercion . . . [L]et me put forward a principle that I regard as reasonable, namely, that persons are excused where they acted in order to preserve the life they have or have embarked on, provided only that their life is not immoral or not worth having. Let the conditions necessary to enable a person to have the life she has or has set upon be called personal needs. Choices are dictated by personal needs if all but one non-trivial option will sacrifice a personal need and will make impossible the continuation of the life the agent has. Personal needs are not necessarily needs for survival. They are more like needs for 16

17

In a certain sense, Williamsesque integrity is more than loyalty, since different loyalties can in principle be adopted by the same agent. In the case of moral demands that are turned aside by considerations of integrity, an agent who abandons a loyalty disintegrates. That is supposed to be why, as Williams famously claims, impersonal morality can ask too much of us. Moral Theory and Anomaly (Oxford: Blackwell, 2000), ch. 2.

82

Liberalism with Hobbesian sobriety

having a worthwhile life. For example, life may not be worthwhile, may not be morally possible, for parents who have betrayed their child. (M of F, pp. 152–153)

This concept of a personal need brings Raz deep into Williams’ territory. It expands the ordinary sense of (i) ‘My life depended on doing A’ in such a way that the truth of (ii) ‘An attachment central to my life will be lost if I do not do A’ is sufficient for the truth of (i), even though (ii) but not (i) is consistent with (iii) I do not die if I do not do A. In other words, the cost of not doing A is something like death, though not (biological) death. It is not that my life stops if I do not do A, but that there is no point going on with it if I do not do A, so that I might just as well have died. This pattern of reasoning seems to call attention to the nonnegotiability of a project or commitment for an agent, rather than to justify actions in the service of the attachment or project. Of course, if there is independent moral justification for the attachment or project, as there is when one is a parent and the action in question is saving one’s child that is one thing. But what if A is Gauguin, going to the South Seas to develop his talent as a painter? Presumably the painter’s life is not necessarily immoral or worthless, but could an attachment to it be strong enough to excuse the betrayal of one’s children or even the betrayal of one’s business partners? It is not obvious that the answer is ‘Yes’. This consideration seems to me to be sufficient to justify rejecting Raz’s concept of personal need, the principle of excuses that incorporates it, and the unnecessary intertwining of integrity with autonomy. The non-negotiability of the personal need is even more problematic when the need is a need for a certain kind of culture. A good illustration of what is at stake here is provided by the case of Anders Breivik, a Norwegian man who disagreed so deeply with his country’s multiculturalism and with its tolerance of Islam, that he spent two years planning a bombing of government offices that he knew would kill many people, and that in fact did take scores of lives in Oslo in 2011. In carrying out his plan Breivik also killed tens of Norwegians on an island in a lake near Oslo, all of whom were activists in the

The strains in Raz

83

Norwegian social democratic party. His journals, published on the Internet, show that he did not simply go berserk, but that he reflected on what he was planning and even recorded his thoughts quite systematically. Apparently he conceived himself as some sort of crusading knight defending a lost, Christian, and ethnically homogeneous Norway, which he thought the social democrats were largely responsible for eliminating. Although he was only 32 at the time of the attack, there is no doubt that he regarded this rampage as his life’s work and that he identifies with it very deeply. Did he have a ‘personal need’ to carry out the bombing? Would it have been a loss of integrity for him to have been prevented by force from carrying out the attack? Perhaps these questions are excluded by the escape clause in Raz’s theory – to do with the immorality of the life that satisfying the personal need promotes. But since the dimensions of the moral life in Raz are partly a matter of what can be justified in the name of autonomy, the escape clause may be question-begging. I said before that Raz’s theory seems to show its weaknesses in some of the places where it is remote from a Hobbesian approach. I criticized its permission of a kind of fundamentalism about personal projects. The case of the Norwegian bomber at least raises the question of whether the permission extends to counter-cultural fundamentalism. The materials of this Razian insobriety, namely the inclusion of loyalty to projects in the conditions for autonomy, seem to be subtractable from the broader theory Raz offers. His questionable conservatism about social forms and his questionable harnessing of that conservatism with perfectionism are less easy to know what to do with. If the cost of dropping his doctrine of social forms is only to make his theory more individualistic, then the cost may be outweighed by the benefits, which is to disencumber his theory of practical reason, and to make more intelligible the connection there ought to be between choosing autonomously and choosing from a standpoint reason affords outside social forms like the professions, parents, and marriage. Practical reason that prescinds from these social forms does not take up a view from nowhere, since there are still the values thrown up by one’s biological nature to reckon with – the value of being free from pain, surviving until maturity and co-operating and flourishing with other human beings. The upshot is that a viable liberalism with Hobbesian sobriety will result only from the subtraction of those elements of Raz’s theory that I have just been criticizing. The result is a theory that recognizes rights,

84

Liberalism with Hobbesian sobriety

the usual liberal institutions, a range of security institutions, some of the background social forms, and emergency as overriding when in conflict with some rights. Again, since emergency will often be tied to reasons for actions that derive from one’s biological nature rather than socially conditioned goals, liberalism with Hobbesian sobriety is considerably less communitarian or anti-individualist than its Razian counterpart. This does not necessarily make Hobbesian sobriety illiberal, which is why a Razian liberalism ‘corrected’ by Hobbesian sobriety may be a more viable liberal theory than the original.

4

Can liberal emergency response address threats to peoples and civilizations?

The right framework for thinking about life in the state is liberal. That was one conclusion of the last chapter. But the form of liberalism I endorsed exhibits what I called ‘Hobbesian sobriety’. It acknowledges the fundamental importance of personal security, and the duties of other citizens and of government to keep the peace. Liberalism with Hobbesian sobriety recognizes emergency as a reason that overrides other considerations, including, in some circumstances, interests that generate some rights. Liberalism with Hobbesian sobriety also acknowledges the importance of institutions that co-ordinate the protection of security. In both of these respects, liberalism and Hobbesianism converge on one another. Where they part company is in relation to the supremacy of the value of security, and the question of whether there is normally a threat of all-out emergency. Liberals deny that security is a master-value, and they deny that normal civil life is an emergency waiting to happen. So they deny that an all-powerful state is always needed, as Hobbes claims. Yet even liberals can hold that an abnormally empowered state is needed exceptionally. Can liberals hold this consistently?

The liberal domestication of emergency A liberal state with temporary but substantial emergency powers can itself seem to be a departure from a defensible political and legal order. The greater the powers made available for coping with an emergency, the greater the temptation a government may have to declare one opportunistically, and to keep it going longer than necessary. Differently, the more emergency powers are concentrated in the hands of a single person, as emergency powers tend to be even in liberal states, the more one person’s judgement has an authority that perhaps it shouldn’t have, even temporarily. Such a regime can seem to be a dictatorship in the making or authoritarianism in the making. For this reason, the 85

86

Threats to peoples and civilizations

relation between morality and public emergency is usually broached by asking how to constrain the powers delegated to governments to enable them to cope with emergencies. It is usually argued that the less power is unleashed to curtail the emergency and the shorter-lived the access to it, the better. This is an appeal for the liberal domestication of emergency.1 It extends the arguments for limiting the power of governments in normal times to the exercise of power in emergencies, and it treats the dangers to liberty posed by emergency power as ones that are hardly ever able to be outweighed by the danger that emergency powers are directed against. It is as if the burden of proof is on those who would resort to extraordinary means to deal with an extraordinary danger, because the users of the means are presumed to be permanently power-hungry. There is something odd about this assignment of the burden of proof. After all, an emergency is an emergency, and if no special empowerment and no special latitude were needed in coping with it, it would simply be an everyday call on everyday uses of power. It is true that there should be great obstacles in the way of declaring an emergency where there isn’t one, so that extraordinary powers aren’t seized for reasons of simple convenience, or kept in force indefinitely,2 but where a declared emergency really is one, and there is evidence of the possible slide into free-for-all, or even, short of this, of considerable loss of life, or even of very severe economic crisis, extraordinary uses of power can seem to be in order: they reflect the departure from the ordinary of the situation they are applied to. It might be thought that if the purpose of emergency powers is to restore as quickly as possible the general exercise of ordinary moral restraint, then the means used must be consistent with ordinary moral restraint. But the most that seems to be true is that the least possible extraordinary power should be used to restore normal life and the 1

2

See Zack, Ethics for Disaster (Lanham, NJ: Rowman and Littlefield, 2009), ch. 4. Zack argues for a government obligation in disaster conditions to maintain the principle of government by consent. This appears to mean channels for active political participation, rather than channels for disaster relief to a passive populace. Zack’s argument is geared in part to the scope in the USA for presidential and government directives during an emergency. See pp. 70ff. Other versions of the appeal for the liberal domestication of emergency are considered later (Chapter 6). As in the USA, where many sets of emergency powers seized by the president during the 1980s have never been withdrawn.

The liberal domestication of emergency

87

normal decencies. How little is the least possible in the circumstances is, however, typically hard to judge, and the judgement is usually left to one person or a small body of people to make as best they can. In developed countries the people making the decision will include those who hold high elected office, and officials who often have experience of real crisis, and whose job it is to operate well-rehearsed procedures for dealing with emergencies of different types, once the individual or group in charge has decided which procedure is appropriate. The delegation of powers to a small group makes sense in the light of the fact that in many emergencies time is short, and inclusive public deliberation requires more time than is available. The division of labour, according to which distinct public officials exist to superintend measures taken against different emergencies; this too makes sense; and since the plans put into effect are typically developed and refined in normal times, when democratic oversight is in principle available, rather than thought out ad hoc, they can have a certain liberal democratic legitimacy. Still, there is a clash between what emergency requires of normally liberal governments, and what liberalism requires of governments abnormally empowered for emergency and facing an unfolding crisis. Abnormally empowered governments in a crisis typically suspend or reverse the separation of powers that liberalism insists upon in normal times. Again, abnormally empowered governments in emergency situations have to be prepared to use force, and liberalism normally abhors the use of force, especially against its own citizens. Liberalism requires that abnormally empowered governments return to normal levels of empowerment – primarily by restoring the normal separation of powers– as soon as possible, i.e., that they retain abnormal levels of empowerment only for as long as grounds for doing so would be acceptable to a wide, well-informed public. But in developed democracies in recent times, the atmosphere – at least once the crisis situation eases – has been hostile to abnormal empowerment.3 There is scepticism about claimed threats to national security. There is scepticism about what governments claim to be in the national interest, and scepticism about what is claimed to be crucial enough to the national interest 3

Waldron, ‘Security and liberty: the image of balance’, Journal of Political Philosophy, vol. 11(2), 2003, pp. 191–210; and ‘Safety and security’, Nebraska Law Review, vol. 85, 2006, pp. 454–507.

88

Threats to peoples and civilizations

to be worth fighting for. There is a related scepticism about official reasons for enlarging powers of surveillance, arrest and detention within a liberal jurisdiction. Direct experience of emergency can unsettle scepticism about the reality of security threats, as arguably happened in the aftermath of September 11 and the bombings in London on 7 July 2005. But the scepticism should also be challenged with general considerations. It is important in normal times, the times in which this book is being read, for people to consider the relative values of life and liberty in abnormal times. In abnormal times, the dangers to life are sometimes greatly increased, and the protections extended in liberal societies to the lawabiding are sometimes exploited by those who have nothing but contempt for those societies, and who are sceptical about the value of life compared to that of a warrior’s rewards in the hereafter. In abnormal circumstances, legislation that is intended to protect the genuinely harmless can be seized upon by the very dangerous, enabling them to operate more easily, and even with impunity. The main argument of this book is that the value of life trumps the value of liberty when there are big threats to both, and that a certain security-minded liberalism is defensible as a response to the worst public emergency. This means more than liberal governments being abnormally empowered in times of emergency, so that they can concentrate decision-making in an executive body, bypass Parliamentary debate and criticism for at least short periods, and suspend or limit some civil rights. It means also that some actions done to protect life can be dirty-handed, sometimes by infringing (non-basic) rights. There is an important difference, intuitively, between the concentration of power in public emergencies whose primary causes are natural, and the concentration of power in public emergencies that result from concerted human action, in particular, politically motivated, concerted action. Emergencies of the former kind do not engage the same liberal scruples as emergencies of the latter kind. When the US federal authorities were slow to respond to the after-effects of Hurricane Katrina, partly because of deference to Louisiana state jurisdiction, the delay was labelled ‘red-tape’, as if red-tape were there to be cut to shreds in times of emergency. On the other hand, when the authorities were quick to arrest many who were connected by credit card transaction records to the September 11 terrorists, that was not considered by civil liberties groups as a proper slicing through of bureaucracy, but

The liberal domestication of emergency

89

rather a violation of due process. One man’s bureaucracy and redtape can be another person’s civil rights protection, or states-rights protection. This double standard is tolerable in cases where civil rights protections do their normal and intended work of protecting the relatively weak and entirely innocent from the ill effects of state power, and where there is no reason to think that an emergency is in progress or imminent. But, exceptionally, there can be cases where it is reasonable to think that civil rights protections are being used by those who intend to harm the innocent, and where the costs of letting them do so can include the loss of innocent people’s lives. Of course, human fallibility being what it is, and the failings of intelligence services being what they are, innocent people can be and are mistaken for terrorists. Innocent people can be and are arrested or even killed entirely unjustly. That does not mean that these mistakes are inexcusable. Even when the relative values of life and liberty are reflected properly in public policy and in public attitudes to emergency, government action in keeping with those values in emergency situations will probably only be partially effective. The minor theme of the book is that, within fairly wide limits, it is unreasonable to condemn those conscientiously making emergency decisions and implementing emergency procedures when these decisions and procedures turn out either not to prevent the harm they were meant to prevent, or prevent the harm at the cost of innocent people’s liberty. The application of exacting moral standards to public emergencies is in some ways as inappropriate as the application of such standards to private emergencies. Moralizing tends to assume normality, or abnormality that can be correlated with the normal by an implementable standard of proportionality.4 Neither normality nor an ability to proportion powers to an abnormal situation need be present when decent governments confront extreme emergencies. It is different for governments that preside permanently over populations by means of powers like emergency powers – powers that give them maximum latitude. These enforce the absence of normality rather than, as they are supposed to, hastening the return of normality. Or, what comes to the same, they normalize the abnormal contrary to the rationale 4

See C. A. J. Coady, ed. What’s Wrong with Moralism? (Oxford: Blackwell, 2006).

90

Threats to peoples and civilizations

for emergency powers in liberal and non-liberal regimes alike. Such governments have no moral excuse, other things being equal, for not developing a higher and higher threshold for the use of these powers, or for abandoning some of these powers over time. But democratic governments that rarely exercise emergency powers at all, or rarely exercise them to the full, are in a different case. They are up to a point constrained to follow one or other pre-prepared plan, and if the procedures that yielded the plans are democratically endorsable, then everyone else is up to a point constrained to live with them, and their implementation, in good faith. Does this mean that whatever a normally restrained and reasonably prepared government does in the face of emergency is to be forgiven? No, but there is a case for operating a principle of charity in emergencies even in relation to the actions of the powerful. This is partly because an emergency, if it really is one, requires quick action, which may lead to an understandably unsatisfactory outcome. But it is also because we delegate to people the responsibility for making the judgements. This power of judging and acting is not necessarily wrested from us by the power-hungry. Often we eagerly pass it to officials and a government, like a hot potato. A government and officials often relieve us of the demands and moral risks of the relevant decision making – demands and moral risks many don’t want to face. So if government and officials do their best to cope in a situation that probably no one else would handle better in the circumstances, that should be good enough. That should be good enough even if it falls short of what was hoped for. The principle of charity particularly needs to be observed in judging the actions of governments responding to potentially overwhelming aggressive wars or to devastating events like tsunamis, but I think it extends to cases like the Foot and Mouth crisis in the UK in 2001, and the UK fuel protests of September 2000 as well. It is true that, in some cases, important recent public emergencies were preventable and arguably just waiting to happen. In the case of September 11, the culpable failure of the CIA to develop intelligence networks on the ground in the Afghanistan region is widely thought to have contributed to the unexpectedness of the attack on the Twin Towers. In the case of Foot and Mouth, lax controls on the import and movement of infected meat in the UK may have been preparing the ground for a

The liberal domestication of emergency

91

huge agricultural and veterinary crisis. In the case of the complex disaster caused by the earthquake in Japan in 2011, the positioning and maintenance of nuclear power stations in an earthquake zone should probably have been recognized as an emergency waiting to happen. These things certainly justify criticism of the governments concerned, and remind us of the important role states have in predicting, preventing, and making preparations that minimize the harm of emergencies. But they do not mean that just anything that is done to minimize the emergencies should be dismissed contemptuously as too little too late. Even an emergency that is dealt with poorly in the early stages and that gets further out of hand than it should can take great skill to bring under control, and the quality of the action in the final stages should not be denigrated just because of what preceded it. Clearly it makes a difference what is in the balance. The Foot and Mouth emergency is not to be compared to the Second World War, and the analogy between even September 11 and Pearl Harbour is very strained. The principle of charity needs to be applied first and foremost to the ‘supreme’ emergency, the kind that poses an imminent and overwhelming threat of great harm on a large scale, including the threat of undermining the recognition of morally important values, like justice and shared humanity. The Second World War is often thought to have been such an emergency and to have justified extreme measures against the Germans and Japanese. Perhaps less charity is in order the further down the scale of imminence, urgency, overwhelmingness and unexpectedness the emergency is located, and the more incompetently it is dealt with in the greater time. The idea that little or no charity is needed in judging governments confronted with emergency is probably the product of two others: (a) the idea that power corrupts, so that governments are to be entrusted with as little power as possible; and (b) the idea that most public emergencies can and ought to be domesticated, that is, brought within the scope of effective procedures for minimizing their ill effects, procedures that can be worked out in normal times under liberal government. Are these ideas unassailable? Perfectionist liberalism calls (a) into question. The state is not just a facade for a power grab by a government and legislators who are the well-rewarded agents of ‘special interests’. It can also be an instrument of solidarity and a source of support for ‘social forms’ (in Raz’s sense) that are the preconditions for autonomous life

92

Threats to peoples and civilizations

plans. What about (b)? According to at least one influential theorist of emergency, Carl Schmitt,5 the very idea of a liberal domestication of public emergency is incoherent, and aiming at it is part of liberalism’s self-deception about the nature of politics, the nature of government, and the requirements on those in public office responsible for responding to emergency. Schmitt’s argument brings into play a kind of fundamentalism that is both objectionable and different from the counter-cultural variety we earlier used Hobbesian resources to criticize. We earlier criticized the promotion or tolerance of a counter-cultural fundamentalism on the part of individuals, such as the fundamentalism of the 2011 Oslo bomber. This time a sort of pro-cultural fundamentalism on the part of governments is at issue. Schmitt thinks that appropriate holders of emergency powers ought to act out of a single-minded identification with a people. For him this means acting to fulfil a people’s will, e.g., as unfolded in a national myth, against those who are alien and hostile to that people. In particular, a holder of emergency powers should be willing to mobilize a people to kill for what it (genuinely) wills, and to defend itself when it is threatened with non-existence. Since the threshold for the existence of this threat can be very low, legitimate aggressive behaviour on the part of a government is easily triggered: as we shall see, mere social heterogeneity is an emergency waiting to happen, according to Schmitt. Action out of strong government identification with a people is not only supposed to be appropriate as a response to emergency, according to Schmitt: it is supposed to be appropriate in normal times. A national government is precisely the institution of state for which the nonexistence of a people or its infiltration by an alien people is supposed to be unthinkable. Unquestioning identification with a people is what sovereignty is supposed to be about, and this means valuing a particular people not only over other peoples but also over what peoples have in common, namely their humanity. Thus the practice of Schmittian 5

Schmitt has undergone a big revival in the last 25 years, but especially since September 11, for his theory of the legal and political significance of emergency. He is tainted by his collaboration, both as a legal academic and advocate, with the Nazis. There is considerable disagreement about the degree to which his legal and political writings directly support National Socialism. For a survey of the relatively recent literature on this question see P. Caldwell, ‘Controversies over Carl Schmitt’ Journal of Modern History 77 (2005) 357–387.

Schmitt: Can there be a liberal domestication of emergency?

93

sovereignty runs contrary to the deep humanitarian impulses of liberalism. Schmitt’s pro-cultural fundamentalism of sovereign national governments is not only objectionable because it is extreme. Milder but still objectionable forms of this fundamentalism are presupposed by more moderate positions about government, such as Walzer’s. As will emerge in this chapter and the next, all of these fundamentalisms are unacceptable, for reasons that depend on liberalism as well as the sober Hobbesian idea that fundamentalism is an emergency waiting to happen.

Schmitt: Can there be a liberal domestication of emergency? Both Schmitt and Hobbes argue for complete latitude – dictatorial powers – for governments facing emergency. Hobbes’s argument fails, not because it is illiberal or because it allows the value of life to trump the value of liberty, but because it makes too many things count as emergencies waiting to happen, and because it implausibly implies that any public emergency – even in a highly developed country with strong customs of civility– will legitimize the desperate, ruthless free-for-all of the state of nature. Schmitt’s theory also fails. According to him, the personal dictatorial powers that liberal constitutions, like that of the Weimar Republic in early twentieth-century Germany, confer on a President in emergency situations, are also required in normal times. They are required at any rate by a national democratic regime, one that reflects the will of an ethnically, historically and even mythically distinct people enmeshed in antagonisms with other such peoples. A balanced parliament can no more represent a national people against its enemies, according to Schmitt, than it can debate issues it would make sense to go to war for. Only a personal embodiment of the people in tune with its history, myths, in short, its identity, can genuinely represent a people. Although this picture of the personal ruler is highly unattractive, the tensions it identifies in parliamentary institutions trying to address life and death issues, or affirming a distinct national identity, are real.6 Or so I go on to argue. The tensions, however, are not so great as 6

Schmitt may also be right to insist on the conceptual distinctiveness of the state of exception. See G. Agamben, State of Exception (University of Chicago Press, 2005).

94

Threats to peoples and civilizations

to show that the domestication of emergency is out of bounds to liberalism. In particular, it is not out of bounds to liberalism with Hobbesian sobriety. I shall consider how Schmitt’s theory might apply to at least one recent emergency. I shall claim that when applied it has considerable shortcomings. Schmitt exaggerates the experienced singularity of emergencies, and he exaggerates the way in which the singularity requires a response in the form of a distinctively personal decision – the decision of a sovereign. His observations about the limits of the discussable in a liberal parliamentary order are valuable, and so are his misgivings about how far a parliamentary democracy can express the will of a people. But these limitations turn out to be beside the point, as emergency should not be seen as a sort of historical watershed in which the possibly mythic will of a people is either frustrated or realized in the face of enemy obstruction. By the same token, the idea that the norms for leadership in an emergency are a guide to the way government ought to work in normal times is defective, because leadership in normal times is not primarily about giving expression to the mythic will of a people in the face of large antagonisms. It may be true that a perfectly impersonal legal order is incoherent, as Schmitt claims, and that the ideal of legal order in liberal democracies – the rule of law – operates according to a logic that incoherently tries to remove all traces of the personal, including what distinguishes one people from another.7 Similarly, it may be true that liberal parliamentarism incoherently confines the considerations relevant to emergencyresponse to those that might survive a testing debate outside a crisis. That does not mean that there ought to be as large a personal element in the legal order as Schmitt’s theory requires. Nor does it mean that emergency-response should give weight to a ‘people’s will’ possibly 7

Whether actual rule of law theorists, such as Locke, have endorsed this logic throughout the history of liberal political philosophy is doubtful. See I. Hampsher-Monk and M. Zimmermann, ‘Liberal constitutionalism and Schmitt’s critique’ History of Political Thought 28 (2007) 678–695. See also D. Casson, ‘Emergency judgement: Carl Schmitt, John Locke and the paradox of prerogative’ Politics and Policy 36 (2008) 944–971. For a defence of Schmitt’s interpretation, see J. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press, 1997), esp. p. 149f. For an argument that some rule of law theorists have more in common with Schmitt than they realize, see F. R. Christi, ‘Hayek and Schmitt on rule of law’ Canadian Journal of Political Science 17 (1984) 521–535.

Schmitt: Can there be a liberal domestication of emergency?

95

formed by mythic national images. On the contrary, and as Hobbes’s own theory implies, the personal – in the form of a partly passionate act of will – is at the root of war, and averting war is largely a matter of suppressing the purely personal. Similarly, unless the object of a national or popular will can be cashed out in terms of salus populi, it can obstruct, not focus, sovereign judgement in a crisis.

The ineliminability of the personal from the legal Schmitt’s attachment to the personal emerges in several theoretical connections. A good place to begin is the following passage: . . . The multifarious theories of the concept of sovereignty . . . agree that all personal elements must be eliminated from the concept of the state. For them, the personal and the command elements belong together. According to Kelsen, the conception of the personal right to command is the intrinsic error in the theory of state sovereignty.8

But the ‘error’ is Kelsen’s and the other theorists’, according to Schmitt. One cannot eliminate the personal from the legal, Schmitt claims, because, for one thing, a norm is not self-applying. It has to be brought to bear by someone competent to do so,9 and the circumstances of its application in a particular case are not always anticipated in the general and impersonal formulation.10 How and when the norm fits, then, has to be left partly to personal judgement.11 The non-eliminability of the personal is all the more clear, according to Schmitt, if one takes seriously the reality of legally exceptional situations, notably emergencies: . . . The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of extreme emergency and of how it is to be eliminated. The 8 9 11

Political Theology: Four Chapters on the Concept of Sovereignty G. Schwab, trans. (Cambridge, MA: MIT Press, 1988), p. 29. 10 P. 31. P. 30. This holds not only in relation to rulers but to the ruled. For the law to be followed is not for there to be outward compliance of the behaviour of the many with the law. Personal renunciation of the right of resistance is also involved, a point made by Schmitt in Part One of Legality and Legitimacy (1932) trans and ed. J. Seitzer (Durham, NC: Duke University Press, 2004), p. 29.

96

Threats to peoples and civilizations

precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited . . . The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, . . . then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution is to be suspended in its entirety . . .12

There is something in the nature of an emergency, Schmitt seems to be saying, that keeps it from becoming the subject of a detailed law. The more detail, the less something counts as unanticipated, as an emergency must be. Again, the more the detail, the more the latitude for action required to deal with an emergency would be circumscribed. In a case where the emergency consisted of extreme national peril, the narrowing of room for manoeuvre would presumably aggravate the peril, add to the threat to the state, and, indirectly, threaten the rule of law in general and the authority of the constitution in particular, unless it provided escape clauses for crises. Since the purpose of emergency laws is to spell out measures that get the state out of peril and back to the rule of law, the detail might be self-defeating. So the law must be general, in which case personal discretion will inevitably be called for in implementing it.13 Extreme emergency, then, introduces a personal element into the relevant legislation. Not only must personal judgement take up the slack between the generality of the norm and the specific situation it is applied to, as in the case of non-emergency law, but personal judgement may need to find means of saving the state that a constitution fails to envisage or prohibits. It is as if the emergency is the case par excellence of the need for free adaptation to circumstance – just what the universality of law prohibits in the normal case. This room for manoeuvre is what defines the sphere of sovereignty for Schmitt. Sovereignty is precisely the role of taking over where legal rules lapse

12 13

Pp. 6–7. For more detailed (and notably hostile) commentary on the matters dealt with in this paragraph, see Oren Gross, ‘The normless and exceptionless exception: Carl Schmitt’s theory of emergency powers and the “norm-exception dichotomy”’ Cardozo Law Review 21 (2000) 1825–1860.

Schmitt: Can there be a liberal domestication of emergency?

97

or a constitution gives out, paradigmatically in cases where national survival is at stake.14

Democracy and dictatorship There is a correspondence between Schmitt’s definition of sovereignty and his definition of the political. Just as Schmitt decried the depersonalization of the legal, and the attempt to make the concept of sovereignty redundant, so he decried the depoliticization of the state through the institutions and assumptions of parliamentary liberalism or parliamentarism. Parliamentary liberalism, according to Schmitt, overvalues discussion, and especially ‘balanced’ discussion, while undervaluing decision.15 It is geared to the idea of policy being corrected in the process of open argument and counterargument between different clearly identified and clearly acknowledged interests. But, Schmitt, insists, not everything is discussible in parliament. Matters of deep ideology, or of metaphysical conviction, are not.16 What can be discussed is anything about which ‘relative truth’ can be reached,17 that is, as I understand Schmitt, truth in the form of a consensus reached through testing debate. Parliamentary liberalism is also geared to the division of powers among executive, legislative, and judiciary. Parliaments openly deliberate and legislate; heads of state and the executive branch of government in general see to it the law is implemented, or take measures only after consulting parliament. Courts interpret the law and settle disputes according to these interpretations. The press informs the public about the activities of the separate powers and about the problems facing government. The openness of the process prevents those who are in charge from ignoring parliamentary decisions or from trying to manipulate those decisions.18 A free press reports the facts to a citizenry that is thereby empowered to make demands of parliament and the executive. 14

15 16

What happens when a threat to national survival is successfully seen off? Presumably, the constitution comes back into force. How can its existence in the background be squared with Schmitt’s claim that the norm is ‘destroyed in the exception’? (Political Theology, p. 12). I think this claim is an exaggeration. The Crisis of Parliamentary Democracy. E. Kennedy, trans. (Cambridge, MA: MIT Press, 1992), pp. 35ff. 17 18 Ibid. p. 46. Ibid. Ibid. p. 38.

98

Threats to peoples and civilizations

The emphasis in parliamentarism on balanced discussion and a balance of powers produces, if Schmitt is right, an emasculated state. Certain measures become unthinkable or controversial even if they are in fact necessary, because they seem to encroach on the freedoms – of property owning, of free speech – that liberal politics dedicates itself to protecting. Parliamentarism thus seems to undercut, if not exclude, the most momentous decision a state can make: namely, a decision as to what citizens can be required to fight against, and, if necessary, fight to the death against.19 The decision to go to war is the extreme case of the political decision, according to Schmitt. The sphere of politics is that in which one collectivity has a sense of another collectivity as alien or allies, as enemies or friends.20 The sphere of the political thus corresponds, in its most extreme case – the case of war between one nation and another – to the sphere of decision-making – the sphere of sovereignty – in which the state faces an extreme peril. And these two spheres in turn coincide with the sphere of what Schmitt calls ‘democracy’. He emphatically denies that democracy and parliamentarism are the same: The belief in parliamentarism, in government by discussion, belongs to the intellectual world of liberalism. It does not belong to democracy. Both, liberalism and democracy, have to be distinguished from one another so that the patchwork picture that makes up modern mass democracy can be recognised. Every actual democracy rests on the principle that not only are equals equal but unequals will not be treated equally. Democracy requires, therefore, first homogeneity and second – if the need arises – elimination or eradication of heterogeneity . . . A democracy demonstrates its political power by knowing how to refuse or keep at bay something foreign and unequal that threatens its homogeneity.21

19 20

21

The Concept of the Political, G. Schwab, trans. (Chicago: University of Chicago Press, 1996), pp. 70ff. Ibid. p. 28. Gabriella Slomp, Carl Schmitt on the Politics of Hostility, Violence and Terror (London: Macmillan, 2009), chs 1 and 7, emphasises the point that enemies in Schmitt are not only sources of violence, but challengers of a sort of communal self-conception. They help to orient a people’s self-understanding and are not just a threat to life and limb. Carl Schmitt, The Crisis of Parliamentary Democracy. E. Kennedy, trans. (Cambridge, MA: MIT Press, 1992). Preface to the Second Edition, pp. 8–9.

Schmitt: Can there be a liberal domestication of emergency?

99

This sinister-sounding passage22 suggests that the homogeneity is racial or religious or national, perhaps to be introduced by restricting voting or residence rights to all and only those who make up the relevant people.23 Democracy geared to one’s connection to a people rather than citizenship thus clearly parts company with liberal rights. Again, if democracy is defined as political rule by the will of the people, and if the will of the people is the will of a democratic electorate minus alien elements, then the rupture between parliamentarism and democracy becomes all the sharper, according to Schmitt. For parliamentarism is not able to give appropriate weight to a people, historically and culturally and mythically defined: it is too rationalistic for that. It recognizes and protects rights that spring from humanity, or, even more abstractly, moral personality – not national history or myth. So it accords rights even to those who make a people heterogeneous. It thus resists giving expression to the will of a particular people or nation, as if giving that will expression were a betrayal of its values of impartiality and balance. What is essential to democracy, according to Schmitt, is its aspiration of removing all distinction between the ruler and the ruled. Democracy makes most sense when it is opposed to monarchy, in which the distinction between ruler and ruled is ineliminable. In general, All democratic arguments rest logically on a series of identities. In this series belongs the identity of governed and governing, sovereign and subject, the identity of the subject and object of state authority, the identity of the people with their representatives in parliament, the identity of the state and the current voting population, the identity of the state and the law, and finally an identity of the quantitative (the numerical majority or unanimity) with the qualitative (the justice of laws).24

Although democracy aspires to eliminate all tensions between governed and government, the characteristic conclusions of liberal democratic 22 23

24

Written in 1927, it predates the Nazi period, though it is easily read as anticipating Schmitt’s involvement with the Nazis. G. Slomp, Carl Schmitt on the Politics of Hostility, Violence and Terror (London: Macmillan, 2009), p. 24 connects homogeneity with Schmitt’s concept of friendship and hostility to pluralism. For the connection among democracy, homogeneity, indivisibility of a people, and majority voting, see Carl Schmitt, Legality and Legitimacy (1932) trans. and ed. J. Seitzer (Durham, NC: Duke University Press, 2004), pp. 27ff. Ibid. p. 26.

100

Threats to peoples and civilizations

arguments – e.g., that voting rights should be extended, that there should be greater use of referenda, that terms of office of elected officials should be reduced – can be resisted by majorities or substantial minorities. Do these substantial minorities or majorities misunderstand democracy when they oppose the conclusions of arguments favoured by majorities? Might even a majority opinion be deluded or badly informed when it goes against an argument whose logic is democratic? Might there be a democratic vanguard or enlightened democrats whose voting inclinations fall in better with the logic of democracy, and who are thereby truer to democracy, than the majorities who go against that logic? Would the illogical majority actually be more democratic if they acquired the point of view of the vanguard? Schmitt thinks that there is a natural passage within democratic thinking to the possibility of a democratically justified dictatorship of the clear-headed – people who understand more clearly than the majority the logic of democracy. The usual form of the dictatorship, Schmitt thinks, is educational. The clear-headed try to bring the less clear-headed majority to see and accept the practical conclusions of democratic logic. Their aim is to get all of the democratic forces on the same wave-length and therefore to abolish the distinction between the enlightened vanguard and the rest. Here is what Schmitt thinks is important about the ingredients in democracy of an argument for rule by an enlightened elite: . . . The people can be brought to recognize and express their own will correctly through the right education . . . The consequence of this educational theory is a dictatorship that suspends democracy in favour of a true democracy that is still to be created. Theoretically, this does not destroy democracy, but it is important to pay attention to it, because it shows that dictatorship is not antithetical to democracy.25

This is the crucial point. It is as if for Schmitt all roads lead to dictatorship. Not only is a dictator required to lay down the law in an emergency; not only is the dictator needed to draw the line between us and them, and to identify the moment that latent hostility turns into outright war between nations, or that calls for a purge of alien elements within a single nation, dictatorship is required to forge the series of identities that democracy aspires to.26 25 26

Ibid. p. 28. Schmitt’s conception of dictatorship fuses the ideas of dictator and sovereign. Traditionally (in Roman law), dictatorship was a commissioned, time-limited

Schmitt: Can there be a liberal domestication of emergency?

101

In an illiberal democracy, as should by now be clear, a decision by the state would not always be constrained to be a decision in favour of the individual in a state. It might be a decision in favour of a people. At the same time, the greatest political threat would not necessarily be any threat to individual freedom or institutions protecting individual freedom. It might be a threat to the existence of a nation, or its way of life. This is the threat that, according to Schmitt, can be met only by a sovereign, and, within the sovereign, by a capacity for discernment of national interest, and a willingness to go to war for it. National interest and the willingness to go to war are both things that liberalism, with its internationalist and humanitarian tendencies,27 officially denigrates, or allows to be subject to international negotiation. Not that liberalism is above military action – in the form of humanitarian or peacekeeping operations.28 But the resort to force is always a desperate measure in liberalism. Schmitt thinks that fear of, or contempt for, military action is another weakness in liberal parliamentarism. But this is not because he thinks that military action can readily be justified. Part of his attack on liberalism in general and parliamentarism in particular is an attack on the rationalism of liberalism and parliamentarism. In keeping with this attack, he denies that there can be a principled or rational justification for war. It is a manifest fraud to condemn war as homicide and then demand of men that they wage war, kill and be killed, so that there will never again be war. War, the readiness of combatants to die, the physical killing of human beings who belong to the side of the enemy – all this has no normative meaning, but an existential meaning only, particularly in a real combat

27 28

role, giving latitude for action, but within the constitution of the state. In Schmitt, the constitution is subject to change by the dictator. See his Dictatorship (Oxford: Polity Press, 2013). In Legality and Legitimacy, (1932), trans and ed. J. Seitzer (Durham, NC: Duke University Press, 2004), pp. 73ff, this line of thought is represented by the argument for a permanent presidency, and the preference for presidential decree over statutory norms, and especially the presidential as opposed to parliamentary suspension of fundamental rights. See Carl Schmitt, The Concept of the Political. G. Schwab, trans. (University of Chicago Press, 1996), pp. 78–79. Ibid. p. 79. Liberalism is prevented by its rationalism from being able to accommodate theoretically the phenomenon of war, according to Schmitt. This is only one of many problems with liberalism as a theoretical framework. For the view that this critique continues to have force even post-Rawls, see D. Dyzenhaus, ‘Liberalism after the fall’ Philosophy Social Criticism vol. 22 (1996) 9–37.

102

Threats to peoples and civilizations

situation with a real enemy. There exists no rational purpose, no norm, no matter how true, no program no matter how exemplary, no social ideal no matter how beautiful, no legitimacy nor legality which could justify men in killing each other for this reason. If such physical destruction of human life is not motivated by an existential threat to one’s own way of life, then it cannot be justified. Just as little can war be justified by ethical and juristic norms. If there really are enemies in the existential sense as meant here, then it is justified, but only politically, to repel and fight them physically.29

Schmitt is saying that the experience of a threat to one’s way of life, the experience of the presence and activity of enemies, is by itself all that is necessary for fighting or going to war. It is all that is necessary even if it does not justify going to war. Again and again he returns to the ‘existential’ character of the threat, by which I take it he means the lived compellingness of the threat, as opposed to arguments that might underlie the enemy position. It is enough for going to war that a people or a group present itself with some intensity as alien, or as other. The relation of enmity is the ‘utmost degree of intensity of a separation, . . . or dissociation’.30 Whether enmity exists, or, what amounts to the same, whether a threat to the very existence of the state exists, is not determined by a norm but by a personal decision – in a strong state by the personal decision of a sovereign or dictator. One cannot organize the state so as to eliminate completely any need for a dictator, and a national democracy may not have much chance of survival if its head of state cannot in some circumstances take on the role of dictator – the role of someone who declares an emergency and then uses personal judgement to eliminate it. A state with no potential to be led by a dictator, with no potential for authoritative identifications of the enemy would be, in Schmitt’s terms, radically depoliticized: it would not have a principle of association based on intense public identification or repulsion from others. Such a ‘state’ might be a kind of economic union, an ethical movement, a religion, but not a political association with the right kind of unity to keep reliably intact a way of life.

Institutionalized fundamentalism In Schmitt’s theory, there are things important enough to die for and kill for, and, in particular, to die for and kill for on the orders of 29

Ibid. pp. 48–49.

30

Ibid. p. 26.

Schmitt: Can there be a liberal domestication of emergency?

103

a government or dictator. Again, there are things important enough to send people to war for, if one is a dictator in charge of a people. Schmitt thinks that irrationalist theories of the use of force make room for these fundamentally important things, and that the insights of these theories need to be adopted in a democratic dictatorship or a national democracy. Commenting on Georges Sorel’s ideas in particular, he writes, The warlike and the heroic conceptions that are bound up with battle and struggle were taken seriously again as the true impulse of an intensive life. . . . Whatever value human life has does not come from reason; it emerges from a state of war between those who are inspired by great mythical image to join battle.31

Schmitt is claiming that there are, and that there ought to be, things that a people can express the value of only through going to war. There are, and ought to be, things that a people would rather die than see destroyed, would rather die than see wither away. It is in this sense that he endorses fundamentalism. Seizing one’s nation’s moment in history by war is not the end of politics, as if politics ended with the end of order or security or parliamentary sovereignty: on the contrary, for Schmitt, myth-inspired war is real politics waking up from the sedated state to which parliamentarism reduces it. Giving expression to a myth does not have to be the work of popular spontaneity, however: it can be organized by a movement headed by a potential dictator, as in the case of a Hitler or a Mussolini. The contrast between Schmitt’s myth-inspired dictator and Hobbes’s authorized dictator could not be greater. Hobbes’s authorized dictator is in power only for as long as he prevents war. According to Hobbes’s moral philosophy, no one is obliged to fight to the death for anything; there is not even an obligation on anyone to join the army at the sovereign’s command: someone who is reluctant to become a soldier can escape military service and not risk his life in battle, if he can find a willing replacement. Fear of death and the hope of commodious life motivates submission to a sovereign – not loyalty to nation or enthusiasm for national myth, and the sovereign is not authorized to play out in foreign or military policy some vision of a historicized will of the people. The organizing value of both submission and rulership is peace, and the concept of peace is supposed to make sense 31

Ibid. pp. 70–71.

104

Threats to peoples and civilizations

to sovereigns and subjects whatever their nationality, national history or national mythology. In this sense Hobbes’s theory of dictatorship is rationalist without in the least being nationalist. But neither is it parliamentarist. Hobbes distrusts parliaments for some of the reasons that Schmitt does. Like Schmitt, he is against the separation of powers. Like Schmitt, he values decision over disagreement. But Hobbes is not anti-parliamentarist because parliamentarism suppresses political life forces that government is supposed to release. On the contrary, the release of those forces in the shape of a war – even a war of national destiny – brings government to an end. The fact that there is such a distance between Hobbes and Schmitt has a certain irony, because Schmitt took himself to be a sort of neo-Hobbesian figure, following Hobbes in his decisionism and in his endorsement of absolute rule.

Us and them in Schmittian politics I now come to the acceptability of Schmitt’s ideas when applied to cases. Taking my cue from the response in the US to the attack by Al Qaeda on the World Trade Centre on 11 September 2001, I shall argue that Schmitt’s account is unpersuasive. It is unpersuasive, though it engages with some of the features of the rhetoric that came from the US president in response to that crisis. ‘The high points of politics,’ Schmitt writes in The Concept of the Political, ‘are simultaneously the moments in which the enemy is, in concrete clarity, recognised as the enemy’.32 Schmitt quotes from a speech Oliver Cromwell gave in September 1656, declaring the Spaniard to be the enemy of the Englishman. A speech made by President Bush to a joint session of the US Congress soon after September 11, 2001 also seems to mark a Schmittian high point of politics. Here is some of what Bush said: On September the 11th, enemies of freedom committed an act of war against our country. Americans have known wars, but for the past 136 years they have been wars on foreign soil, except for one Sunday in 1941. Americans have known the casualties of war, but not at the center of a great city on a peaceful morning. 32

Ibid. p. 67.

Schmitt: Can there be a liberal domestication of emergency?

105

Americans have known surprise attacks, but never before on thousands of civilians. All of this was brought upon us in a single day, and night fell on a different world, a world where freedom itself is under attack. Americans have many questions tonight. Americans are asking, “Who attacked our country?” The evidence we have gathered all points to a collection of loosely affiliated terrorist organizations known as Al Qaeda. They are some of the murderers indicted for bombing American embassies in Tanzania and Kenya and responsible for bombing the USS Cole. Al Qaeda is to terror what the Mafia is to crime. But its goal is not making money; its goal is remaking the world and imposing its radical beliefs on people everywhere. The terrorists practice a fringe form of Islamic extremism that has been rejected by Muslim scholars and the vast majority of Muslim clerics, a fringe movement that perverts the peaceful teachings of Islam. The terrorists’ directive commands them to kill Christians and Jews, to kill all Americans and make no distinctions among military and civilians, including women and children. This group and its leader, a person named Osama bin Laden, are linked to many other organizations in different countries, including the Egyptian Islamic Jihad [and] the Islamic Movement of Uzbekistan. There are thousands of these terrorists in more than 60 countries. They are recruited from their own nations and neighborhoods and brought to camps in places like Afghanistan, where they are trained in the tactics of terror. They are sent back to their homes or sent to hide in countries around the world to plot evil and destruction. The leadership of Al Qaeda has great influence in Afghanistan and supports the Taliban regime in controlling most of that country. In Afghanistan we see Al Qaeda’s vision for the world. Afghanistan’s people have been brutalized, many are starving and many have fled. Women are not allowed to attend school. You can be jailed for owning a television. Religion can be practiced only as their leaders dictate. A man can be jailed in Afghanistan if his beard is not long enough.

106

Threats to peoples and civilizations

The United States respects the people of Afghanistan – after all, we are currently its largest source of humanitarian aid – but we condemn the Taliban regime. It is not only repressing its own people, it is threatening people everywhere by sponsoring and sheltering and supplying terrorists.

This speech and its immediate context have all the marks of a Schmittian high point of politics. The leader of a strong state, having seized emergency powers, declares a certain group to be the enemy of his state and accuses them of having perpetrated an act of war. This declaration is accompanied by a declaration of war. No squeamishness is felt about the use of military force. And a clear, widely felt, intense alienation among a population exists, caused in this case by the attacks on the Twin Towers and the Pentagon. A democracy is shaken into illiberalism by exactly the sort of thing Schmitt makes so much of: direct and deeply felt experience of spectacularly violent attack. Yet, questions widely asked by liberals after September 11 appear to make sense, and to tell against Schmitt’s account. Why were the attacks to be regarded as acts of war, rather than criminal acts? Why was the use of war powers and a military response to be preferred to an especially well co-ordinated use of police powers, perhaps under laws against murder and airline hijacking? These questions have a particular edge when pressed against Schmitt, because they raise the possibility that legal norms intended for normal times also apply in extraordinary ones, and that the declaration of an exception can be gratuitous, even in the face of groups as intensely alien in America as Al Qaeda, and actions as repulsive as flying passenger jets into the World Trade Centre. President Bush’s speech itself veers between claims concerning criminal acts and acts of war. To the extent that it declares Al Qaeda rather than an organized criminal gang to be the enemy, Al Qaeda is not supposed to be the enemy only of America. The perpetrators of the September 11 attacks are also supposed to be enemies of the people of Afghanistan, whose country they have taken over as a base for terrorist attacks. Besides being enemies of these two nations, Al Qaeda are made into the enemies of freedom. This claim makes them enemies of a certain international political grouping, rather than of America alone. My point is not that Bush’s speech is confused in its application of the rhetoric of war and enmity, though the speech may

Schmitt: Can there be a liberal domestication of emergency?

107

be that; rather, there is no obvious limit on how relations of enmity can be described, no confinement of relations of enmity to nations, no need for it to be the sovereign of a single nation that declares these relations to hold. Schmitt was himself aware of the possibility of appropriating the friend/enemy relation for the description of a global struggle between the global proletariat and the global bourgeoisie, with specifically national groupings apparently transcended. And he was conscious of how a strong country adjoining weak ones could by default exercise the power of deciding on friends and enemies for the weaker countries. These possibilities, however, seem to detach the power of declaring friends and enemies from people playing the role of sovereign. An Osama bin Laden can play the role, and so can the head of a superpower. Suppose President Bush were right to say that the attacks of September 11 were acts of war, requiring international military retaliation rather than a series of police actions in different countries. Then are Al Qaeda members taken prisoner to count as prisoners of war, and are they to benefit from the protections of the Geneva conventions? Until a Supreme Court decision went against it, the Bush administration claimed that Al Qaeda members could be treated worse than ordinary prisoners of war, and that they could be incarcerated in a military facility outside mainland US civilian jurisdiction. But if the Al Qaeda members were not real prisoners of war, were their acts real acts of war? Schmitt’s theory supports wide discretion for the president in the action against Al Qaeda and presumably also allows laws protecting suspects to be waived for terrorist suspects after September 11. These laws were in fact suspended in the US after September 11, allowing many suspects to be detained indefinitely without charge, if their names came up in, e.g., credit card records connecting them to the credit card transactions of the September 11 hijackers. But are these suspensions of laws consistent with a war against the enemies of freedom? Liberals thought not. And Bush’s speech, with its description of a war of retaliation by freedom-loving America against its enemies, encourages this line of thought. Schmitt’s illiberalism is itself open to complaints about the suspension of the normal laws limiting the time and grounds for detention. For it is no obligation of the sovereign to keep an exceptional situation going, or to take all possible powers against a threat even where the powers seem to no one to be useful in counteracting the threat.

108

Threats to peoples and civilizations

These objections count against more than the detail of Schmitt’s account; they call into question his claims about the significance of the exceptional, and the general relation between norm and exception. For Schmitt, the exception to law is a better key to law, the political order, and the preferred form of democracy than the norm. Up to a point, Schmitt seems to be right. There is no such thing as a system of norms that applies itself to situations and in doing so bypasses personal will and judgement. But for a personal element to be ineliminable is not for it to deserve to be given free rein. Even in a situation of extreme national peril and an atmosphere of intense enmity, it does not seem to be true that anything the sovereign thinks goes. Still less does authority seem to attach to the intensity of the existential situation of hatred or the perception of threat, with all of its invitations to exaggeration and distortion. The sovereign, exercising emergency powers, is not incorrigible about relations of cause and effect. Sweeping powers of arrest may remove terrorists from the street, or they may be ineffective because there is so little intelligence about who and where the terrorists are. In the latter case, the act of seizing sweeping powers of arrest may be questionable. This is not to say that in an emergency someone or a small group shouldn’t be in charge or be able to exercise discretion. It is to say that the bigger the departure from the norms of preemergency times, the bigger the burden on whomever is in charge to be sure that the departures will bring the emergency to a conclusion as quickly as possible. And this means appealing not to personal judgement but to claims about what measures will produce what effects, claims that have no great personal element to them. Again, the fact that it is departures from the norms of normal times that have to be justified, shows that the normal casts its shadow on the abnormal, just as much as the abnormal or exceptional tells us something about the normal. A final difficulty, this time with Schmitt’s existentialist understanding of enmity, is illustrated by the aftermath of September 11. Was the enemy Al Qaeda, or was it any militant Muslim grouping, or was it any terrorist organization? If people of Middle Eastern appearance began to occasion intense fear and loathing among American airline passengers or among the general public, would they be an enemy or part of the enemy, even if they had nothing to do with Al Qaeda, even if they were third-generation Arab Americans who voted for

Second thoughts about the high points of politics

109

George W. Bush? Nothing in the Schmittian apparatus that we have glimpsed so far prevents the drift or spread of enmity from Al Qaeda to the Arabs.33 The official perception of a group as threatening to a way of life, not justified perception of a group as threatening to a way of life, seems sufficient for enmity. The fact that an unjustified perception of a group as hostile can prompt members of that group to become hostile means that declarations of enmity can do no more than make an antagonism official: they can actually create antagonisms from scratch or deepen ones that already exist. But can it be the will of a people that its leadership recruit fighters for the other side? If not, Schmitt’s high points of politics may not have the altitude claimed for them.

Second thoughts about the high points of politics, homogeneous nations and ‘civilizations’ There are further objections to Schmitt’s sort of account, this time reflecting the ways in which it has been overtaken historically. For one thing, it seems fair to widen the category of high points in politics. Not only the acts of strong leaders are momentous; so are watersheds in electoral or parliamentary politics, or moments at which a previously unparliamentary regime turns to parliamentary democracy, or defends its turn in that direction.34 The post cold-War unification of Germany was a move in that direction. Admittedly, it was preceded by all the extra-parliamentary activity that culminated in the destruction of the Berlin wall, but that activity also ushered in a period of parliamentarism. Yeltsin’s extra-parliamentary stand in 33

34

Admittedly, Schmitt operates with a more complicated theory of enmity than has been expounded so far. He distinguishes among conventional, real, and absolute enmity. The first is exemplified by conventional wars between nation-states; the second by a mix of conventional and guerrilla war against an invader; the third by militarized antagonisms between rootless global ideologies. The ‘War on Terror’ combines aspects of real enmity on the part of people who suffered from terrorist attacks, and absolute enmity on the part of those who both advocate and fear a new world order governed by Shariah law. For an excellent discussion, see Slomp, Carl Schmitt on the Politics of Hostility, Violence and Terror (London: Macmillan, 2009), chs. 3, 5 and 6. Further democratic developments that challenge the ‘high points’ category as well as others are discussed in Honig, Emergency Politics: Paradox, Law Democracy (Princeton University Press, 2009), chs. 3 and 4.

110

Threats to peoples and civilizations

Russia against the attempted coup to turn back perestroika similarly ushered in some form of parliamentarism. For some in the West, the simultaneous coming to power of Thatcher and Reagan in the UK and US were high points, but not ruptures of parliamentarism. Certainly the influence of their periods of rule spread far beyond the countries they governed. These important episodes, however, were delivered within a framework of parliamentary politics, not despite the framework. Other historical developments that seem to go against Schmitt include migration leading to multiculturalism in countries that might once have been the home of a homogeneous people, economic and educational globalization in the form of Westernization, and, within the Western world, globalization in the form of Americanization. These trends go against an understanding of the them-and-us distinction that necessarily puts ‘us’ within the borders of a single nation, and ‘them’ everywhere else. And Schmitt’s emphasis on nation and on class politics makes his views less relevant to a world that is increasingly divided along, e.g., religious lines as opposed to national ones. A framework that seems to bring Schmitt up to date while retaining its emphasis on the central role of the difference between ‘us’ and ‘them’ is Samuel Huntington’s.35 This discerns in a globalized world a number of rival civilizations, conflicts between which explain the behaviour of particular, sometimes very far-flung, nation states: The 1990s have seen the eruption of a global identity crisis. Almost everywhere one looks, people have been asking, “Who are we?” “Where do we belong?” and “Who is not us?” These questions are central not only to peoples attempting to forge new nation states, as in the former Yugoslavia, but also much more generally. In the mid-1990s the countries where questions of national identity were actively debated included, among others, Algeria, Canada, China, Germany, Great Britain, India, Iran, Japan, Mexico, Morocco, Russia, South Africa, Syria, Turkey, and the United States . . . In coping with identity crisis, what counts for people are blood and belief, faith and family. People rally to those with similar ancestry, religion, language, values, values and institutions, and distance themselves from those with different ones.36 35 36

The Clash of Civilizations and the Re-Making of the World Order (London: Simon and Schuster, 1996). Ibid. pp. 125–126.

Second thoughts about the high points of politics

111

Ancestry, religion, values and institutions, even language, can be shared across national boundaries. ‘Civilization’ is the word Huntington and other theorists use to refer to groupings of this kind that can transcend nation, but are not inter-governmental bodies.37 According to Huntington’s own theory, Western civilization is one among seven existing civilizations. After a long period of dominance, it is in decline, but, for now, it holds sway in most of the countries of Western Europe, North America, sub-Saharan Africa, a few countries in south-east Asia, as well as Australian and New Zealand.38 For now, Western nations dominate world banking, manufacturing, weapons production, technological development, communications and transport. Historically, according to Huntington, the West has had in common an intellectual ancestry in Greece and Rome; a Christianity divided between Catholicism and Protestantism; Romance and Germanic languages; the separation of temporal and spiritual authority; pluralistic societies; representative bodies such as parliaments with representation for different interests; a recognition of rights and liberties at the level of individuals. Currently, according to Huntington, Western civilization is at odds with at least two other civilizations, the Islamic and Sinic (or Chinese). These tensions are sometimes violent, but so far, the violence has been concentrated along ‘fault-lines’ located geographically where groupings of Western and non-Western countries meet. The leading ‘core countries’ of Western civilization, America, the FrancoGerman axis and the UK,39 were for a long time spared violence from other civilizations at home (Huntington’s work predates 9/11), but they have been challenged from within by multiculturalism, and by an intellectual movement bent on revaluing downwards a culture and institutions mostly created by dead, white, European men. Especially in the United States, the twin tendencies of the denigration of European culture and the rise of an unassimilated Latin-American Hispanic population create for Huntington an internal threat to Western 37

38

Schmitt himself had views about groupings in the international order, especially those with imperialist characteristics, including countries within the spheres of influence of the US, and the French and British empires. See esp. The Grossraum Order of International Law with a Ban on Intervention for Spatially Foreign Powers (1939–41) in T. Nunan, trans. Carl Schmitt, Writings on War (Oxford: Polity Press, 2011), pp. 75–124. 39 Ibid. Map. 1.3, pp. 26–27. Ibid. p. 135.

112

Threats to peoples and civilizations

civilization in one of its citadels. This yields a practical question for Americans: Are we a Western people, or are we something else? The futures of the United States and of the West depend on Americans reaffirming their commitment to Western civilization. Domestically, this means rejecting the divisive siren calls of multiculturalism. Internationally it means rejecting the elusive and illusory calls to identify the United States with Asia. Whatever economic connections exist between them, the fundamental cultural gap between Asian and American societies precludes their joining together in a common home. Americans are culturally part of the Western family; multiculturalists may damage and even destroy that relationship but they cannot replace it. When Americans look for their cultural roots, they find them in Europe.40

For the West in general, as opposed to its American core state, survival depends, according to Huntington, on more unity within the civilizational grouping, and a willingness on the part of civilizational groupings to live with other such groupings. Living with other civilizations means not acting on the universalist pretensions of one’s own. In particular, it means not interfering in the internal conflicts of other civilizations, and it means co-operation between the core countries of different civilizations in preventing and curtailing inter-civilizational wars. Huntington does not seem to think that inter-civilizational wars could never be justified, but he is more concerned to show how unjustified intercivilizational wars could be avoided. A future war between Vietnam and China, for example, no matter how much it might offend against Western values, would not justify Western intervention in his view.41 Huntington’s account seems to recapitulate Schmitt’s in its insistence on loyalty to culture or tribe as the main motor of geopolitical change. It is true that civilization is culture or tribe at its most general. Still, one’s connection to it can be visceral, rather than rational, or, in Schmitt’s vocabulary, ‘existential’. The speech from Bush quoted in the last section makes better sense, perhaps, as a reaction to an attack on a civilization than it does as a response to an attack only on America, and in the statements that were made by Bush and Tony Blair in 2006, terrorism was more and more associated with a rejection of Western values rather than British or American ones. These statements function no less well than Oliver Cromwell’s as means of distinguishing 40

Ibid. p. 307.

41

Pp. 312–316.

Second thoughts about the high points of politics

113

friends from enemies. Again, because ‘civilization’ is defined broadly, and because the main world religions lie behind at any rate many of the main civilizations, according to Huntington, there is no necessary tension between a Huntingtonian civilization and the authoritarian traditions of some of the world’s religions.42 On the contrary, many of the great civilizations are significantly authoritarian, whether in virtue of their associated religions or their social histories. So loyalty to a civilization with a live authoritarian tradition need not differ from loyalty to a nation led by a Schmittian dictator, and Huntington thinks it can be just as legitimate as loyalty to a non-authoritarian civilization. Schmitt holds that when nations find themselves in relations of enmity, a war of national self-assertion is not out of the question, and may even be necessary. Huntington seems to disagree. He seems to think that a West that is appalled by the action of a core country from another civilization, and that even feels enmity based on that action, should not go to war with that other civilization. As we have seen in relation to his scenario of a local war between China and Vietnam conducted in a way that affronts a Western sensibility, Huntington does not argue for a world order that reflects only one civilization’s values, or international relations conducted only according to Western rules. In his reluctance to fall in with triumphalist mythologies for the West, like Fukiyama’s mythology of a future in which Western values alone infuse a single post-Cold War global civilization, Huntington seems to be strongly at odds with Schmitt. Only when it comes to challenges to Western civilization from within, does Huntington seem to think that Western self-assertion is required. Although Huntington’s take on the West’s dealings with other civilizations is moderate, it is unclear that less moderation would necessarily be out of keeping with Western civilization, as Huntington understands Western civilization. Because civilizations are amalgams of political institutions, religions and ideas, and because some elements of these amalgams can command fundamentalist loyalties, it is not so clear that there will be one authoritative understanding of what is required for the West’s survival. In particular, Huntington’s 42

Huntington distinguishes Latin American from Western civilization partly on the ground that the former is much more corporatist and authoritarian than the Western civilization of Europe or North America. See p. 46.

114

Threats to peoples and civilizations

moderation may be no more authentically Western than some forms of fundamentalism. For example, according to the Christian sects that believe in the ‘Endtimes’ supposedly foretold in the biblical Book of Revelations, some sort of all-consuming conflict between the Christian world and its enemies is imminent and is to be welcomed as a step toward the return of the Messiah. Believers in the ‘Endtimes’ would not necessarily support restraint in international relations, and, again because of their interpretation of the Book of Revelations, might support military intervention in support of Israel, even if its consequences were cataclysmic. If Christianity is essential to Western civilization, as Huntington claims, and if ‘Endtimers’ were to gain influence, what would make it illegitimate for someone to act on their beliefs in the name of the West? The Endtimers apart, what would make it illegitimate for believers in the supremacy of Western values or democracy after the Cold War to want to impose regime change on undemocratic core states of other civilizations? I do not think that Huntington’s theory has a way of arbitrating between conflicting conceptions of the things that Western countries ought to do for the sake of their survival or for the sake of other things. On the contrary, because Huntington thinks of civilizations as amalgams of practices and beliefs, some of which are in tension with one another, his theory actually invites scepticism about his own favoured approach to ensuring the survival of the West. It will be recalled that his favoured approach consists of battling multiculturalism at home and living internationally with many civilizations other than one’s own. But there is a basis in some of the beliefs he identifies as definitive of Western civilization for a tolerance and even a promotion of domestic multiculturalism. According to Huntington himself, Western civilization has a long tradition of pluralism, of using representative bodies as channels of public policy, and of protecting individual rights.43 It is also the breeding ground of, among other ‘isms’, liberalism.44 Yet these very elements of Western civilization may lend themselves to arguments in favour of language rights for migrant communities, and against the supposedly disproportionate esteem directed at Western European, white, male cultural icons. In other words, these very elements of Western civilization lend themselves to arguments for 43

P. 71.

44

P. 53.

Second thoughts about the high points of politics

115

multiculturalism. Perhaps worse, they lend themselves to the criticism of his intolerance of multiculturalism as illiberal, and, to that extent, unWestern. The right response to this sort of point is not to redefine ‘Western’, or to define it more precisely,45 but to question arguments that rest ultimately only on cultural identifications rather than reasons intelligible across civilizations. If it is bad for the West to interfere in the military confrontation between China and Vietnam, that should be because of, e.g., the loss of lives, pain or impoverishment of everyone affected, and not just the threat it poses to the distinctive institutions, values and so on of the West. Loss of life, impoverishment and pain do not matter only in the West, and it is unlikely that they do worse as ultimate values for Westerners than those on Huntington’s list. On the contrary, they seem to be values perfectly adequate to adjudicate between the Endtimers’ international strategies and Huntington’s, and they apply to China and Vietnam as well. Some values have authority independently of one’s national or civilizational loyalties. This may indicate that they have the status of values more fundamental than civilizational values. The tendency across civilizations to resist policies if they lead to substantial loss of life may attest to the value across civilizations of not taking life or of not taking it away lightly. The same authority seems to attach to the value of reducing pain or disease. These values seem to transcend one’s national or civilizational attachments. That is, even if one is prepared to kill for one’s country or to die for it, loss of life is universally recognized as a cost of a policy, and a major cost. Again, even if one is prepared to endure intense pain for something, experiencing the pain is regarded as a high cost, even if people believe it is a justifiable cost in certain circumstances. The concepts of death and of pain themselves carry with them the implication that to die or to suffer pain is bad for the person who dies or is in pain. Because these are conceptual truths, reason itself seems to create the presumption that death and pain need to be outweighed as costs of action, or else count as reasons against those actions. Now recall a line quoted earlier from Schmitt’s praise for the irrationalist, Georges Sorel: ‘Whatever value human life has does not come from reason; it emerges from a state of war between those who are 45

See R. Scruton, The West and the Rest (London: Continuum, 2002).

116

Threats to peoples and civilizations

inspired by great mythical image to join battle’. The line of thought just sketched, to do with the content of the concepts of death and pain, flatly contradicts Schmitt. Mythically inspired people who join battle may feel intensely things that make life worth living, but feeling these things is not what endows life with its value; otherwise, fighting in a myth-inspired battle would not carry any costs, and it does. The Schmittian line of thought overvalues lived intensity and undervalues common or garden human life. It groundlessly connects the fundamental with what is beyond reason and not with what reasons for and against policies have in common across civilizations. It connects the fundamental with what a people identify with but is unable to account for the fact that a people can call in question the things that they as a people strongly identify with. If they can call in question things they identify with as a people, e.g., because they can think twice about the value of national feeling itself, how fundamental can the objects of national feeling be? The same considerations count against Huntingtonian claims for ties of civilization. Especially in the West, where the rational criticism of the authority of religion, of the authority of nation, and of the authority of the merely familiar or traditional goes with the territory, it is hard to see the last word going to whatever in the West now binds us as a tribe, unless what ties us as a tribe is a penchant for rational criticism.

Beyond the national and the tribal? What is the perspective from which members of a so-called Western civilization can engage critically with what they are bound to tribally? Must that perspective itself belong to a tribe? This is perhaps the largest question that arises from Huntington, and there are two responses to it. One, favoured by a certain strain of Anglo-American moral philosophy that I have already endorsed, is to say that practical rationality provides the perspective,46 and that practical rationality rises above 46

See Thomas Nagel, The View from Nowhere (Oxford University Press, 1986), ch. 8, and The Last Word (Oxford University Press, 1997), ch. 6. See also T. M. Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1998), ch. 1. There are many critics of this view of rationality, notably Walzer, whom I go on to discuss. For another critic, writing with emergency explicitly in mind, see B. Honig, Emergency Politics: Paradox, Law, Democracy (Princeton University Press, 2009), ch. 1.

Beyond the national and the tribal?

117

the peculiarities of nations and civilizations. The other, articulated by Michael Walzer,47 and perhaps implicit in Huntington, who acknowledges Walzer’s influence, is to the effect that national cultures have embedded within them a certain minimal morality that abstracts away from what is culturally specific and that represents a morality shared between cultures. Although this minimal morality looks like what is most fundamental to moralities in general, and what has most authority, Walzer thinks it is rooted in the culturally specific, and that it has no more authority than the culturally specific. Walzer on mimimal morality is reminiscent of Raz on social forms, and, as I shall now argue, it is open to similar misgivings. ‘Thin’ morality, according to Walzer, is what enables people from one country to identify with freedom movements in other countries. Everyone recognizes the dictatorial exercise of power as a threat, even if that oppression and the resistance to it take radically different forms in different places. A minimal morality has a place for the value of life and liberty, even though the maximal moralities that it is drawn from do not understand life and liberty in exactly the same way. When the threats take the form of outright massacre or slavery, the differences between cultures over life and liberty tend to be irrelevant: agreement is much more prevalent than disagreement. Perhaps famine and lifethreatening disease resonate in the same way around the world as life and liberty. Still, values that belong to a minimal morality do not for that reason have a special foundational status in a morality beyond all local moralities. Or so Walzer claims.48 Instead, values impinge on action through local moralities and have to be abstracted from local moralities. According to Walzer, minimal morality can not only be an instrument for solidarity with other cultures having local moralities different from ours: it can also be a basis for criticism. Minimal morality can play this role not because it provides an authoritative external standard for the criticism of all cultures, but because it has a use in showing to members of one’s own culture or those in power that the culture or its leaders has failed to live up to their own internal standards.49 Thus, 47

48

In this and the following paragraphs my source for Walzer’s views is his Thick and Thin: Moral Argument at Home and Abroad (Notre Dame, Indiana: University of Notre Dame Press, 1994). 49 Thick and Thin, ch. 1. See Thick and Thin, pp. 41ff.

118

Threats to peoples and civilizations

the pretensions of most cultures to give great value to life can make minimal morality a tool against a given culture’s penchant for harsh punishment. But can Walzer’s approach really make room for full-blown criticism of a local morality when he denies that the critic or a minimal morality is detachable from or more fundamental than a local morality? Perhaps Walzer’s framework accommodates a kind of insider’s criticism – Protestant criticism of the system of indulgences that led to the Reformation could appeal to values to which the Catholic Church paid lip-service – but it is not clear that Walzer’s meta-ethics makes room for more radical criticism – the sort, for example, that calls into question dictatorship even when it is dictatorship of the proletariat, or that calls into question the value of equality and not just certain coercive measures implemented in the name of equality. These forms of iconoclastic criticism may be ineffective rhetorically: they may dissuade no believers in the dictatorship of the proletariat or no egalitarians, but they can be intelligible despite that. After all, things can be outr´e without surpassing local understanding. Not only does Walzer operate with a concept of criticism that suffers from his insistence that criticism is culture-bound; he also seems to leave out of account the way in which the values of a minimal morality can be filtered by local understandings of the friend/enemy or us/them distinctions. Cultures are perfectly intelligible in which the life and liberty of insiders are respected scrupulously, but in which those of ‘illegal aliens’ or ‘guestworkers’ are routinely treated as second best. When this happens, is minimal morality really a lowest common denominator between cultures, or do its values only extend to a preferred group? Again, how is the idea of minimal morality that is never detached from a home culture to be related to international moral standards with origins in international institutions rather than national or tribal ones? So-called ‘international human rights standards’ refer to life and liberty, and have become more or less familiar around the world, if not entirely internalized everywhere. They are regularly invoked by local social critics addressing a domestic government, and not just by international NGOs addressing many governments from a headquarters in Geneva or New York. Clearly these values are not derived from each culture or many cultures on earth even if they are locally recognized. So they do not belong to a minimal morality in Walzer’s sense.

Beyond the national and the tribal?

119

Still, they make some sense to people from different cultures and were indeed articulated by people from more than one culture, even if those people were not drawn from a proper cross section of the cultures of the globe. This non-minimal morality plays some of the same roles – of encouraging solidarity and articulating bases for criticism – as what Walzer calls a ‘minimal morality’ but precisely without being parochial or thick. The rootless or international counterpart of minimal morality is more resistant to tribal restrictions on values it endorses. Having one’s life and liberty respected is not supposed to be conditional on belonging to a tribe or nation. This is because one of the values of international morality is internationalism or cosmopolitanism, expressed, admittedly contentiously, in a language that vests rights in being human rather than being a citizen. Accordingly, uses of international morality for criticism are not always uses for internal criticism. As the ‘Asian values’ debate makes clear,50 international morality can look, or at least be said to look, alien from some parts of the globe. But that does not make it unsuitable for the work of criticism, or even for effective criticism. Being revealed to be out of step with internationally endorsed standards, even when those standards are not their own, can lead countries to change just as much as being revealed to engage in practices that violate their ideals. Nor does the rootlessness of international morality make it unsuitable to expressions of solidarity. If it did, human rights NGOs could not be the link between jailed writers and individual citizens of human-rights-respecting jurisdictions. Can even international morality be the object of intelligible criticism? Clearly it can be, and from two directions. There is the ‘Asian values’ criticism, which identifies international morality as Western morality with imperialistic ambitions. This is not so different from Walzer’s criticism, with its dislike of reasoning from the general to the particular, and supposed illusions of a universal moral perspective.51 Then there are philosophical attempts to unify and ground human rights.52 Philosophical groundings of human rights are supposed to

50 51 52

See J. Bauer and D. Bell, eds. The East Asian Challenge for Human Rights (Cambridge University Press, 1999). See Thick and Thin, p. 48. See e.g. J. Nickell, Making Sense of Human Rights, 2nd edition (Oxford: Blackwell, 2006). See also T. M. Scanlon, ‘Human Rights as a neutral concern’

120

Threats to peoples and civilizations

resolve tensions in the declarations of the human rights community over time about the nature of human rights. They are also supposed to embed human rights in systems of normative ethics that are both more rigorous and more general in scope than human rights. These systems of normative ethics achieve a high degree of detachment from the historical and political background for the development of human rights instruments, and differ from what they justify by being very much more explicitly and rigorously derived. These are the systems that are supposed to be expressive of practical rationality as opposed to the way of life of a historically situated citizen or white, male philosopher. These are the systems that, while they justify the nostrums of the conventional morality of many nations, purport to do so from a position outside any morality with national hallmarks. The fact that they justify the average Frenchman’s belief in the wrongness of torture is as incidental as the fact that the axioms of arithmetic state truths of arithmetic that can be expressed in French. The fact that some of the precepts of international morality and minimal morality in Walzer’s sense are both open to justification by highly general normative ethical theories suggests that those moralities have more than parochial content. And the fact that they can be justified, that reasons can be given for them even where they are not questioned, suggests that international and minimal morality has more than local authority. This means that, contrary to Schmitt, we do not hit bedrock in our consideration of what is worth fighting over or dying for when we experience someone as an enemy and have the thought, ‘It’s either him or me’. Nor, contrary to Walzer himself, do we hit bedrock when we are struck with some common gestures or practices that remind of us of our shared stake in a way of life. Nor, contrary to Huntington, do we hit bedrock when we are put in mind of the documents and events that are hallowed in a particular civilization. We can think bigger than that. in Scanlon, The Difficulty of Tolerance (Cambridge University Press, 2003) and James Griffin On Human Rights (Oxford University Press, 2008).

5

Liberalism and emergency response: National community

Whatever the limitations of Walzer’s meta-ethics – of his account of the source for the authority of moral and political values that are shared nationally or internationally – his normative ethics and politics have a good deal of initial plausibility, especially in application to questions about emergency. Walzer’s normative political theory seems at first to strike the right sort of compromise between liberal views and those of Hobbes and Schmitt. Unlike Hobbes and Schmitt, Walzer does not take states of emergency to be guides to the norms of everyday politics; on the other hand, and like Hobbes, his concept of emergency gives great weight to threats to life. But his relativism and his sympathy to attachments to ways of life, even highly illiberal ones, make his position ultimately unacceptable. Like Schmitt, Walzer thinks the ways of life of a community are important enough to wage war to defend: important enough even to be defended by dirty-handed action on the part of a government. Again, since he does not think that illiberal but unforced ways of life are necessarily illegitimate, he denies that only liberal regimes have a right to fight for survival. Illiberal regimes cannot legitimately resort to murder or slavery, but so long as they abstain from significant official coercion and threats to life, they may depart legitimately from strong egalitarianism and may legitimately give more weight to religion and nation than liberal, secular political arrangements do. I shall argue that the extent of common ground between Walzer and Schmitt tells against Walzer, and that a compromise that ends up closer to Hobbes is to be preferred. War and dirty hands in defence of life are better than war and dirty hands in defence of some unforced but deeply illiberal ways of life, and solidarity consistent with peace is better than solidarity consistent with communal tradition, if communal tradition is strongly anti-egalitarian and aggressive, or even self-importantly nationalistic.

121

122

Liberalism and emergency response: national community

National community The value of national community is invoked in two well-known arguments of Walzer’s. One is the argument that governments may do what they think best in periods of supreme emergency to secure national survival.1 The other is to the effect that international humanitarian intervention is rarely justified. In a supreme emergency, as Walzer understands it, there is imminent danger of death on a large scale. But not only lives are at stake: so is a way of life shared over time between many generations of a population settled in a well-defined territory. In a supreme emergency, an invading military force threatens to force a new and unwanted way of life on those it doesn’t kill. In these circumstances, according to Walzer, the relevant government may blamelessly strike out, even pre-emptively, in a sort of self-defence. It is similar in situations that appear to call for humanitarian intervention: a supreme emergency once again faces a community, but the threat comes from the local state apparatus, or from another local community with claims to some of the same territory. In cases like these, Walzer claims,2 the first obligation to defend the threatened community falls upon the community itself. It falls on outsiders and outside governments only when, and only for as long as, the community is being massacred, raped, or tortured. If it is not being overwhelmed in these ways, the threatened community must see to its own survival or be at the forefront of the struggle for survival. Outside help, when it may legitimately be given, is best given by local powers, according to Walzer, and not by a presiding superpower, or by an international body. In any case, outside extreme situations of genocide or massacre, the burden of proof is always on outsiders to show that they have good reasons to intervene in the first place, and good reasons to prolong an intervention beyond the point at which people are no longer being killed or tortured in droves. Intervention when there is no threat to life is hardly ever justified, according to Walzer, even in the name of defending other human rights. 1 2

Walzer, Just and Unjust Wars (New York: Basic Books, 1978), ch. 16. Walzer, Just and Unjust Wars, pp. 51–63; 86–101; 106–108; 339–342. Reprinted as ‘The rights of political communities’ in Beitz, C., Cohen, M., Scanlon, T. and Simmons, A. J., eds. International Ethics (Princeton University Press, 1985), pp. 165–194. See also, in the same volume, Walzer’s ‘The moral standing of states: a reply to four critics’, 217–237.

National community

123

These claims are controversial, but not entirely without substance. As we shall see, they depend on logical features of a shared way of life, on the fact that human beings value a shared way of life even when they are not able fully to justify it, and on the fact that ways of life can contain conflicting customs and yet co-exist. Ways of life do not exist at the level of humanity as a whole, but at the level of groups with a certain history in a certain place. There can be unforced accommodations of one way of life to another, and unforced accommodations within a way of life between groups with different kinds of power. The key to understanding Walzer’s position on humanitarian intervention is the idea that these accommodations can be legitimate even when, from a point of view outside them, they seem arbitrary or unjust. Local willingness to live with them is sometimes sufficient for legitimacy, even when that willingness is in a certain sense unthinking. Illegitimacy arises when a way of life is disrupted by killing or by other very serious threats to the well-being of those who take part in it. At its worst, as in the case of the Nazi onslaught against Eastern and Western Europe, the disrupting way of life can be a moral disaster and the way of life disrupted pretty morally admirable. But, according to Walzer, even high-minded interventions can be illegitimate, for they can disrupt ways of life that are historically well-established and widely accepted among those who take part in them. Although I think Walzer’s claims have considerable plausibility, I want to point out a kind of instability in them, already foreshadowed in our discussion of Schmitt. A way of life, or, what can amount to the same thing, belonging to a national community, divides humanity into two groups: us and them. The division may not mark out an all-out antagonism between groups, but the communities constituting ‘them’ and ‘us’ are supposed to be exclusive. Some of ‘them’ may pass among ‘us’ or coexist with ‘us’, but they cannot form a unity with us unless they share our way of life, in which case they are assimilated and are not ‘them’ after all. To live a different way of life (even in the heart of a community) is to live apart from a community. The concept of citizenship allows for unassimilated members of minority national groups alongside a majority national group, and there can be a state which recognizes many official national minorities, but the concept of a national community made up of unassimilated national minorities is probably incoherent. Either it is not really a community, or the minorities within it are not really unassimilated.

124

Liberalism and emergency response: national community

If this is right, there is a problem with self-consciousness of minority status among would-be members of a community. There is a particular problem if the minorities have something in common with the external power in a supreme emergency or with the other side in a civil war. It is no solution to replace the concept of community with that of the state, or membership in a community with the concept of citizenship. This replacement does not make room, as it should, for blameless national attachment.3 On the other hand, blameless host community attachment to a nation can co-exist with alienation on the part of minorities in that nation. There is no getting over this tension, it seems to me, because the concepts of community and state are not interchangeable, and because national attachment and minority detachment can both be reasonable. It is to Walzer’s credit that he does not try to legislate away this tension, but, on the contrary, insists on the reality of its ingredients. After examining Walzer’s uses of the concept of community in the case of a nation-state suffering external conquest and annihilation, I shall move on to the question of whether every nation-state with an internally accepted way of life can legitimately defend itself or ask others to help it to do so. Walzer’s use of the concept of community allows for legitimate self-defence for illiberal regimes, and it is hospitable to a certain kind of questionable fundamentalism.

Emergency and community The best known statement of Walzer’s doctrine of supreme emergency is in Just and Unjust Wars, where it takes the form of a defence of some of the things that were done or that were allowed to be done to innocent people by Churchill’s wartime government when it faced the Nazis in the early 1940s. The opprobrium attaching to the Hitler era cannot but lend plausibility to the claim that quite a lot of moral latitude had to be extended to those fighting against the Germans, and there is a sense in which in the Second World War Churchill represented more than the British. It is widely thought that liberal values themselves were at stake, not just the lives and self-government and way of life of inhabitants of an island bounded by the English 3

See S. Nathanson, ‘In defense of moderate patriotism’, Ethics 99 (1989) 535–552.

Emergency and community

125

Channel and the North and Irish Seas. If Churchill were defending not only Britain but the moral values of the English-speaking world or of Western Europe – in other words, if something bigger than a single country’s survival was at stake – then supreme emergency might indeed be so momentous a crisis as to justify extreme and drastic measures.4 On the other hand, and by the same token, supreme emergency might be so singular as to preclude any general understanding either of it or of what it might justify morally. In particular, it might be hard to justify desperate measures as a means of securing any old country’s survival, with whatever values are dominant in it, against military conquest. A version of the argument that does not depend on the singularity of the war against Hitler was devised by Walzer in 1988. In ‘Emergency Ethics’,5 he asks why a national emergency in wartime justifies measures on the part of a government in the name of survival that an individual soldier could never justifiably resort to in wartime to save himself. Part of the answer, according to Walzer, is that individual self-defence cannot involve the sacrifice of others and be morally justified. Sometimes people have to face the risk of death head-on or else evade it immorally. But governments cannot justifiably risk national death by facing the threat head-on. This would mean making the people they represent face the risk of death. Governments have a primary obligation to the people they represent to keep them safe, in return for which individuals accept their authority.6 This is only part of the answer, Walzer says, because governments represent not only individuals but the community that individuals belong to, and community has a value not reducible to the security of individuals, a value that explains the difference between the prerogatives of a soldier whose life is threatened and those of a government whose country is threatened with extinction. In a national emergency in which a community is threatened, a government may, for the sake of the survival of a community, depart from the morality of normal 4

5

6

For a careful examination of what Walzer’s arguments do and do not prove within a liberal framework, see Henry Shue ‘The impossibility of justifying weapons of mass destruction’ in S. H. Hashmi and S. P. Lee (eds) Ethics and Weapons of Mass Destruction: Religious and Secular Perspectives (Cambridge University Press, 2004), pp. 139–162. Originally a speech to the US Military Academy reprinted by the Academy as a pamphlet. Reprinted in Walzer Arguing about War (New Haven: Yale University Press, 2004), pp. 33–50. My references are to this version. Ibid. p. 42.

126

Liberalism and emergency response: national community

times – which the 1988 Walzer characterizes as the ‘absolutism of rights’ – and adopt utilitarianism instead. So a government may take military action intended to terrorize civilians, as the British Bomber Command did in the air war against Germany – if that is what is required for the greater good constituted by the survival of the deeper values of the community for which the military is fighting. Walzer’s position is not that military action is regularly required. Nor is it that when it seems to be required, it always is. He concedes that emergencies can be declared opportunistically and that citizens should be suspicious when governments make exceptions or try to.7 Walzer’s position is not that nothing wrong is done when the requirements of utilitarianism are met ruthlessly in abnormal times. For according to him the rules of absolutist morality do not lapse in emergencies: they are overridden, and only then on rare occasions. So it can both be true that a government does the right thing in acting ruthlessly on behalf of the community and that members of it ought to be punished for doing so.8 Here is Walzer enlarging on the value of community: Edmund Burke’s description of the political community as a contract between “those who are living, those who are dead, and those who are yet to be born” helps us to see what is at stake here. The metaphor, I suppose, is inappropriate, since it is impossible to imagine the occasion on which such a contract could have been agreed to. But there is an important truth here nonetheless: we do try to carry on, and also to improve upon, a way of life handed down by our ancestors, and we do hope for recognizable descendants, carrying on and improving our way of life. The commitment to community across the generations is a very powerful feature of human life, and it is embodied in the community. When our community is threatened, not just in its present territorial extension or governmental structure or prestige or honor, but in what we might think of as its ongoingness, then we face a loss that is greater than any we can imagine, except for the destruction of humanity itself. We face moral as well as physical extinction, the end of a way of life as well as a set of particular lives, the disappearance of people like us. And it is then that we may be driven to break through the moral limits that people like us normally attend to and respect.9 7 8 9

Michael Walzer, ’Emergency ethics’ in Walzer, Arguing About War (New Haven: Yale University Press, 2004), pp. 39–40. ‘Political action: the problem of dirty hands’ Philosophy and Public Affairs 2 (1973) 160–180. Walzer (2004), 43.

Emergency and community

127

The stakes in the case of an individual soldier faced with death, Walzer says, are smaller. He will be survived by, if not members of his immediate family, his community, and it is for that community rather than for himself or his own survival that he is fighting. Community survival gives a point to war in national self-defence and justifies individual sacrifice, but community survival is justified by the value of continuity through the generations, which, according to Walzer, if I understand him, is about as important a value as one gets and is tied up to something basic in human life. Walzer’s Burkean understanding of the value of community seems to me hugely to exaggerate the importance of recognizability and continuity, a point I shall try to develop in a moment. But, more than that, it depends – surely questionably – on the possibility of adopting a view from nowhere within a community large enough to have a national government. Even when England was much more racially and culturally homogeneous than it is now, say in the first third of the twentieth century, impressions of the requirements of continuity would surely have been highly sensitive to facts about class and gender, the difference between country and city life, the difference (still visible) between the North and South, and many other things. Imagine the phrase ‘the disappearance of people like us’ spoken in the 1930s by one of the aristocratic Mitford sisters, on the one hand, and, on the other hand, by some tenant on a Norfolk farm. The phrase could not possibly be spoken with one voice or carry the same meaning. And this fact begins to scratch only the surface of the question being begged by Walzer’s Burkean rhetoric. Although the Mitfords and the tenant farmer would undoubtedly both have claimed to be English and to have attached great importance to being English, it is very doubtful that a unitary notion of Englishness would have been in play between them, or that this would have been the primary understanding of ‘people like us’ in the thoughts of the different people we are considering when they imagined the destruction of their way of life. Even when the frame of reference is not a national community but the much more compact one of a family over several generations, the importance of continuity and recognizability is not altogether obvious. Although it is easier at this level to know what recognizability to ourselves is, it is not necessarily so easy to see the desirability of preserving or deepening it. On the contrary, strong lines of continuity

128

Liberalism and emergency response: national community

and recognizability can make family life stifling or boring. It is hard even to make sense of continuity and recognizability at the level of a family without assumptions of relative immobility and parochialness, and these assumptions surely take quite a lot of the shine off what is being contemplated. It may or may not be a good thing to be the seventh in a line of doctors, related father and son. It may or may not be a good thing for a family to have been concentrated for ten generations in a part of an English county no more than ten miles square. It may or may not be a good thing to have a certain nose or eye colour that lots of other family members have. In a similar way, it may or may not be a good thing that the British high street has lost its Lyons Corner Houses or that its supermarkets and restaurants have not maintained their styles from the 1950s or 1970s. Though there used to be a British culture that was distinctive right down to what people wore, ate, drank, smoked and drove, and though many things today would be unrecognizable to past generations, the discontinuity may be overwhelmingly a good thing on balance – the lack of recognizability notwithstanding.10 Not only are continuity and recognizability in a community arguably overvalued by Walzer; they are underspecified. Evidently continuity is partly to do with gradual change in stable populations, and with a stable informal, uncodified way of life within stable geographical borders. But in the long passage just quoted from Walzer that adapts Burke, we have ongoingness being geared to a way of life rather than a given governmental structure, and it is plausible to claim that a way of life can include governmental structure, as well as certain institutional protections and freedoms. Because governmental structures and institutions can in principle be shared by different national communities, there is some ground for not including them among the things that distinguish one community from another or that are part of what is looked for in the passage from one generation to another. But because the establishment of some of these institutions is a key part of the national self-images of different countries, and because these institutions have sometimes inspired or been copied by other countries or by transnational bodies, things are not so simple. 10

For more doubts about conservatism about culture, this time in the context of criticism of Kymlicka on minority rights, see John Tomasi, ‘Kymlicka, liberalism and respect for cultural minorities’, Ethics (1995), pp. 591ff.

Unassimilated minorities

129

An issue in recent UK politics that crystallizes the blurred boundary line between way of life and governmental structure and constitution is that of compulsory ID cards. Many people in the UK not only think of compulsory ID cards as illiberal, an erosion of the right to go about one’s business unmonitored; they think of it as alien: acceptable, perhaps, to the French and Germans, who are used to centralization and deference to authority, but out of place in the UK, unBritish. I think the worry about ID cards is a worry about a change to the community in Walzer’s sense, but it is also a legal and constitutional worry, and in a community that values the rule of law, none of these things is separable from the others. Over ID cards the distinction between community and state blurs to a greater degree than Walzer seems to want to allow.

Unassimilated minorities Another source of pressure on Walzer’s idea of community comes from the fragility of uses of the first person plural. Here is one of the places where minorities are relevant, especially relatively unassimilated minorities. Unassimilated minorities are difficult to locate in Walzer’s picture of populations developing ways of life over long periods of time in well-defined territories. Unassimilated minorities practice their own ways of life, often with very heavy cultural references to countries of origin, but practice this way of life outside their countries of origin, in so-called host countries. Unassimilated minorities have something to do with their host communities, of course. They drive and walk on the same streets, share the same water supply and electrical power grid, and, especially at the level of children, mix with and speak the language of the host community. They may be policed by the same people as the host community, be taught and governed locally by the same people, and so on. But, by definition, by the definition of the word ‘unassimilated’, they would not include themselves or be included by the host community in the reference of first-person plural declarations by the host community. Their links to the host community are not constituted by a shared self-image but merely by a shared geographical locality and a passive involvement with some of the same institutions. The unassimilated minority may depend on a host-community government to keep them safe from a war of conquest, but their community is neither represented by, nor continuous with, the host community the

130

Liberalism and emergency response: national community

government represents. The ongoingness they have a stake in, if any, may be rooted far away. The fact that a minority is unassimilated does not necessarily place it in a relation of antagonism to a host community. The Hassidic Jews in the Stamford Hill district of North London have their own schools, language, commercial and cultural networks, car dealerships, shops, and so on, and they wear their apartness in their characteristic clothing and hair styles. They are not anti-British, though they are arguably unBritish. They are anti-secular, and practice a kind of Jewish orthodoxy with origins in Eastern Europe. They have more in common with other communities with similar origins in Brooklyn, New York, than with mainstream Jewry in Britain, the US, and even Israel. The ongoingness they have a stake in would probably be preserved if they moved from North London. This sort of unassimilated minority leads a life of its own outside national attention, but if anti-Semitism became a more powerful force in British politics than it is at present, things would be different. September 11 and its aftermath have brought it about that both assimilated and unassimilated Islamic communities from the Asian subcontinent and North Africa are more self-conscious and more noticed by the host community in the UK and elsewhere than they used to be. In the UK general election of 2005, Labour lost its traditional support from the Asian community partly because the invasion of Iraq was seen by some as anti-Islamic, and partly because British-Asian Muslims were thought by some British-Asian voters to have been treated unfairly when imprisoned as part of the US-led ‘war on terror’. Before 9/11, British-Asian communities were the focus of unwelcome attention for the custom of arranged marriage, and sometimes for kidnapping and honour killing. Although there are many British-Asians who are much more integrated into the host community than the Hassidic Jews of North London, there are also considerable numbers who speak no English, who do not understand or participate in mainstream cultural, political, or recreational life, who, on the contrary, populate ghettoes and submit to a ghetto power structure, and whose standard of living is low. Were Britain now to face a threat from any quarter, but specifically from a Muslim extremist quarter, would these people be included among Walzer’s ‘us’, and would the sense of an impending extinction of a way of life on the part of the host community make room for a part of the way of life that was British-Asian, let alone

Unassimilated minorities

131

unassimilated Asians in Britain? If the answer is ‘No’, as it is likely to be, then there is a real question which side in that conflict the Asians would choose for themselves or be assigned by the host community. The dangers of exclusion in communitarianism may tempt some people to think that all there ought to be to community is citizenship, and that all there is or ought to be to the survival of community is the passage of a citizenry from past to future by constitutional means, whether that involves merger with another country, or unlimited immigration, or the donation of territory by constitutional means to any seceding minority group. While the attraction of this way of thinking is understandable, what it envisages will strike many as a case of throwing the baby out with the bathwater. Citizenship is neither necessary nor sufficient for feeling at home; so it is hard to see how citizenship can take its place, or why, except to rule out the dangers to minorities in emergency situations, it should. On the other hand, feeling at home need not consist of more than the experience of modest attachment to a country: that is, of residing there, being conscious of its public institutions, being willing to co-operate with them, and not wishing to emigrate. This is not real entrenchment in a way of life, but neither is it real separation. This modest national attachment can rise above parochialism. After all, it is possible to come from somewhere and self-consciously to adopt the corresponding nationality, without feeling uncomfortable living away, even permanently away, from one’s own country, and even feeling comfortable in and familiar with many countries that are not one’s own. Differently, it is possible to come from somewhere, and still admire and wish to see preserved the culture of a foreign country. American financial supporters of the restoration of Venice, for example, need not be aspiring Venetians or Italians. Neither need expatriates living for a few years in Venice. They can acknowledge that they are foreigners while living and enjoying life in Venice. Indeed, in this day of the Internet and routine intercontinental travel, at least for a rich middle class from the developed countries, it is possible to maintain an intermittent presence where one comes from as well as where one lives. This way of being a citizen of the world is not particularly bound up with a citizenship drained of nation. What is more, it is a viable and even much practised way of being a citizen of the world, whereas a citizenship of sheer cosmopolitanism is not. Yet citizenship of the world in this real-life manifestation is

132

Liberalism and emergency response: national community

compatible with disturbance at the thought of one’s home country disappearing, even through a voluntary merger, or through voluntary migration or immigration, or through birth control. Not only is this sort of disturbance intelligible: it is blameless. It is nothing like the first slip down the slope toward a willingness to carry out ethnic cleansing. Instead, it can be national attachment without nationalism. Although it may be desirable for people to be citizens of the world in the sense of knowing and liking countries not their own and moderating feelings of attachment to their own, this does not have to mean rootlessness or a blindness to nationality. There is room for thoughts and feelings of modest national attachment even in relation to countries one does not call home. These feelings may be sufficient to make one understand and support campaigns of self-defence by natives of those countries. One does not have to be an insider to believe that invasion and conquest of a country are worth resisting by force, or even worth resisting by means that would normally count as immoral. In other words, thoughts about national self-defence do not have to be in the first-person plural or derive from a first-person sense of ongoingness, with its mystical Burkean significance. On the other hand, these thoughts do not become available only by extrapolating imaginatively to the patriotic feelings of foreigners on the basis of feelings for one’s own country. One’s attachment to one’s own country may be pretty mild. I have been arguing that the problems raised by unassimilated or assimilated but distinguishable minorities in a period of crisis or war are not solved by stipulating that citizenship rather than national origin is all that matters. The parallel move of making constitutionality trump history and feelings of national attachment is similarly desperate. National attachment not only does matter, but it can matter blamelessly, and we make room for the importance of local attachment to other countries in our intuitions about international intervention. Trying to exclude the value of national attachment as if it were always a kind of bias misrepresents the value it is.11 On the other hand, to allow for it in political arrangements, as I think we must, is perhaps 11

There is a strand of political thought associated with David Miller that says that national attachment is not just blameless, but that it is part and parcel of citizenship under a certain concept – Miller’s – of social justice. That is, identifying with the majority national culture is one of the norms of republican citizenship, according to Miller. See his Citizenship and National Identity

Unassimilated minorities

133

to acknowledge the inevitability of the tensions that unassimilated minorities live with. The tension can be illustrated by reference to the position of British Asians after 9/11 in the face of two polarizing but not necessarily unjust claims that this minority have heard being made by the majority community. First, they have heard the claim that there ought to be a war on terror. For the sake of the argument, let us take the claim in the narrow sense that police and, where appropriate, military action should be taken against terrorists – after 9/11. This is not an unjust claim in itself, so long as the extension of the term ‘terrorist’ is soberly defined and so long as it is conceded by those making the claim that very few terrorists come from a local Asian minority. Second, it is not unjust to claim that some of the terrorists there should be police or military action against are Islamic extremists from the Middle East or the Asian sub-continent, since no one denies that these are places from which some terrorists have come to Britain and other countries in the past. Though these claims are polarizing, and though they put some British-Asians in the delicate position of simultaneously defending Islam, defending the links of the minority British-Asian community with the Asian sub-continent, and condemning what was done on 9/11, many British-Asians have done just that, knowing that they will suffer homogenizing abuse from both the anti-Islamic and the anti-US/British sections of the public in Britain. This is the hazard one faces if one has mixed attachments. One faces it unfairly the more one is assimilated, the more one’s mixed attachments are inferred by others rather than felt by oneself, and the more the tensions manifest themselves in hate or violence, or internment or expropriation. But there is no moral argument for ironing out institutionally all the tensions that arise from trying to belong to more than one community. Nor is there a moral argument for a social surgery that cuts out national attachment where it exists. What there is is a moral argument against is fundamentalist national attachment. Walzer seems to me to be willing to endorse fundamentalist national attachment. But he is wrong to (Cambridge: Polity, 2000), ch. 4. Nothing like this sort of position, even in the modest version adopted by at least one of Miller’s followers, is implicit in mine. See Daniel A. Bell, ‘Is Republican citizenship appropriate for the modern world?’ in Daniel A. Bell and A. de Shalit, eds. Forms of Justice (Rowman and Littlefield, 2003), pp. 227–250.

134

Liberalism and emergency response: national community

be willing to do so. He is wrong to think that the disappearance of one’s community is only slightly easier to imagine or live with than the disappearance of humanity.

National autonomy, relativism and fundamentalism Walzer gives a good, brief summary of his position in the following passage. The rights of states rest on the consent of their members. But this is consent of a special sort . . . Over a long period of time, shared experiences and cooperative activity of many different kinds shapes a common life. “Contract” is a metaphor for a process of association and mutuality, the ongoing character of which the state protects against encroachment. The protection extends not only to the lives and liberties of individuals, but also their shared life and liberty, the independent community they have made, for which individuals are sometimes sacrificed. The moral standing of any particular state depends upon the reality of the common life it protects and the extent to which sacrifices required by that protection are willingly accepted and thought worthwhile. If no common life exists, its own defense may have no moral justification.12

Walzer means that not only a defence mounted locally, but defence by others, may have no justification. Part of a common life of value is the willingness of those who take part in it to defend it. And if this willingness is missing, then the threshold for others being legitimately involved in an intervention to defend that way of life will never be reached. The other side of this picture in Walzer, of autonomous nationstates with different ways of life and with different responsibilities for defence, is a certain moral relativism. The state is autonomous – is self-ruling and deserves not to be interfered with – just because of the willing involvement of individuals over time in a way of life in a certain stable location. This involvement in a way of life does not consist of subscription to a common set of principles, but participation at many different levels in activity that runs through a population, and whose character results from what has been done together in a certain territory over generations. So long as the activity 12

Walzer (1985) 168.

National autonomy, relativism and fundamentalism

135

is unforced and characteristic of a population, it is what a state legitimately stands for and can and ought to defend by force, according to Walzer. But many ways of life have evolved in the world, some of which run contrary to international law. Are countries whose ways of life go against this grain legitimately subject to international law enforcement? Or, to put it more concretely, don’t human rights and their defence trump ways of life and their defence, so that foreign intervention in the name of human rights is sometimes justified where one way of life is at stake? Walzer’s answer is a qualified ‘No’. Except to stop slaughter or torture, foreign intervention, and especially intervention by very distant countries, is out. And even intervention prompted by slaughter or torture should be curtailed at the point at which the very worst threats to individuals are removed. At that point, local mechanisms or the local way of life should be allowed to reassert themselves, even if they involve discrimination against women or discrimination against certain minorities. In short, intervention is to stop, according to Walzer, at the point at which it threatens the integrity of the political community, not at the point at which all human rights abuses have been brought to an end. Walzer devises a striking thought experiment to back up his way of thinking. He invites us to imagine a country called Algeria, in which a group of revolutionaries come to power pledged to create a democratic and secular state, with equal rights for all citizens. The regime they actually create, or which is created by their struggles with one another, is very different: a military dictatorship and a religious ‘republic’ without civil and political liberties and brutally repressive, not only because a new political elite has established itself and resists all challenges but also because women have been returned to their traditional subordination to patriarchal authority. It is clear, however, that this regime (in contrast to the one the revolutionaries originally had in mind) has deep roots in Algerian history and draws importantly on Algerian political and religious culture. It is not a democratic regime; its popularity has never been tested in a democratic way, but there is no doubt that it is an Algerian regime. Now, imagine further that the Swedish government had in its possession a wondrous chemical which, if introduced into the water supply of Algeria, would turn all Algerians, elites and masses, into Swedish-style social democrats. It would wipe out of their minds their own political and religious culture (though it would leave them with no sense of loss). And it would provide them

136

Liberalism and emergency response: national community

instead with the knowledge, capacity, and will to create a new regime in which basic security rights, political and civil liberties, too, would be respected, women would be treated as equals, and so on. Should they (the Swedes) use the chemical? . . . I am certain that the Swedes should not . . . .They should not because the historical religion and politics of the Algerian people are values for the Algerian people (even though individuals have not chosen their religion and politics from among a range of alternatives) which our valuation cannot override.13

I agree that the Swedes should not use the chemical. But the intuitions which underlie this verdict need articulation. The operative intuition is not, I think, the ‘Each to his own’ credo that Walzer seems to be expressing at the level of nations. Rather, it is that Algerians would not be choosing either their new regime or the new and alien frame of mind that would soften them up for accepting it. Instead, the frame of mind is foisted on them, and since the new regime is acceptable only within that frame of mind, it is not authentically accepted. It is true that the historically rooted Algerian religion and politics are in a sense not chosen either, being part of an inheritance from earlier generations of Algerians, but then neither are these things foisted on modern Algerians, that is, imposed on them against their will. The religion and politics may be no more imposed than a language or style of dress is. Though they are not chosen, they may fairly be said to be accepted, in much the way that this can be said about the contents of any inheritance. That acceptance can nevertheless be reflected on and criticized, called into question, rejected or endorsed. And so the possibility of choosing it in the sense of endorsing it is not ruled out by its being part of an inheritance. For the politics and religion to be Algerian, or, in my terms, for the politics and religion to be part of an inheritance that is accepted by Algerians, is not for the politics and religion to be incapable of being reconsidered and rejected by individuals, and even by the political community.14 But, and this point goes Walzer’s way, the reconsideration and rejection takes time. Not just the time it takes for the Algerians to drink the water with the chemical in it, or to read the news that the 13 14

Walzer (1985) 233–234. This point is related to the idea that many distinctive elements of a culture occupy a space of reasons. See J. Waldron, ‘What is cosmopolitan?’ Journal of Political Philosophy 8 (2000) esp. 234f.

National autonomy, relativism and fundamentalism

137

revolutionaries have taken over, but the time required for the change in religion and politics to be internalized through a common practice for reconsidering and rejecting things. If such a practice does not exist, and the reconsideration has to be introduced by force or not at all, then its method of introduction is not very different from the pill in the water supply. On the other hand, if the practice does exist, there is no guarantee that it will not be subversive. For what we are considering is the internalization of methods of criticism, and it does not answer a criticism of an accepted practice that the practice is widely accepted or familiar. As soon as a method for reconsidering and rejecting practices is part of a culture, then so is a method for standing outside practices, which may weaken those practices. In this way, practices of criticism can have some of the same effects as the pill. The trouble with Walzer’s position is not that it gives any weight to culture or community but that it puts too few obstacles in the way of actions that express a fundamentalist attachment to a culture. Someone who would rather be dead than alive in exile, or who would rather die than see his country concede some of its historic territory to foreigners or to a minority regarded as alien, experiences a kind of nationalist fundamentalism that Walzer’s communitarianism is not easily able to dismiss as extreme and illegitimate. On the contrary, what Walzer’s communitarianism does is to raise threats to ways of life to the status of threats to survival. Since being involved in these rather than those long-standing shared practices determines who we are, threats to those practices are threats to us. Even if the foreign oppressor does not kill those on whom he imposes a new language, a new understanding of history, and a new balance of power, our ongoingness is disrupted or undone, which, in Walzer’s system of values, is worth resisting by force and at risk to life. It is true that Walzer seems to recognize a mechanism that might keep fundamentalism in check, namely, a kind of social criticism. But his kind of social criticism, being embedded in a kind of culture, is suited to keeping practice in keeping with professed organizing values, not for getting those professed organizing values to be reconsidered from a position of detachment. It is here that Walzer seems to me damagingly to converge on Schmitt and damagingly to part company with Hobbes. Walzer’s position permits a sort of fundamentalism even if it does not, like Schmitt’s, insist upon it. Walzer’s allowance for fundamentalism derives from a bottom-up sense of on-goingness in a community, which a

138

Liberalism and emergency response: national community

government representing a community could legitimately decide to protect by force, even dirty kinds of force. Schmitt’s fundamentalism is associated with a possibly myth-induced will of a people that becomes active through a personal dictatorial will. What the two positions have in common is the thought that a people has a life, that this life helps to constitute the identity of someone who belongs to a people, and that threats to this life justify a fight to the death between one people and another. In Hobbes, on the other hand, the right to self-defence is not expansively interpreted as the right to a way of life, and conquest by a power with an alien way of life is not understood as a form of death. Quite the contrary. For Hobbes it can be reasonable to submit to a conquering power in return for life. On a theory that makes submission to a conquering alien power a form of death, this cannot even be a possibility. To submit to a sovereign – even one that one has helped to institute – is for Hobbes to give up the right to determine one’s plan of life down to the last detail. One’s room for discretion is determined by the scope of the civil laws. It is the same with communal ways of life, notably the joint practice of a single religion. Religious practices are subject to strict government restriction – for the sake of security (Lev. ch. 31, Tuck, pp. 249ff). So however much one defines oneself by one’s religion, and thus by a way of life, threats to that way of life and threats to life are never run together in Hobbesian politics. One’s communal affiliations are not relevant to survival or self-defence. Since even an instituted sovereign can, if necessary for security, change the prevailing way of life, the difference between instituted and conquering sovereigns can be pretty slight. The right to self-defence in Hobbes is the right to protect oneself against death or major physical injury. It is not a right to be spared insult (which for Hobbes is merely psychological injury) or even the right to be spared minor physical assault (Lev. ch. 27, Tuck, pp. 206–207). Even less is it a right to the defence of one’s self-identifications, private or communal. Hobbes is no communitarian about religion, and he is no communitarian about social contracts. Commonwealths are not for him tacit agreements to continue an amalgam of practices across the generations in a certain large-scale land area; they are security agreements, entered into out of the mutual fear of the parties. The point of the agreements is not to secure or maintain a collective identity, but to concentrate coercive power behind a civil law that criminalizes injury, killing and

Emergency response in liberalism with Hobbesian sobriety

139

dispossession. Coercive power concentrated in the right way is crucial, not the way it is instituted, or the identifications, if any, of the contractors. So Hobbes minimizes the differences between sovereignty by institution, which results from an agreement among the many to have their wills directed by government, and sovereignty by acquisition, where there is the same agreement, only motivated by fear of the conquering power rather than the other parties to the contract (Lev. ch. 30, Tuck, p. 138). A subject of a conquered nation either submits to a new sovereign, in which case he acquires something like the status of subject he had formerly, if the conqueror agrees, or else he does not submit, in which case he declares himself an enemy of the conquering power and is a legitimate target of its force, much as a criminal is in a commonwealth by institution. It is true that more values than physical security are in play in the commonwealth. For example, there is Hobbes’s notion of salus populi, which probably combines security from attack with a modest personal prosperity. Again, Hobbes’s doctrine of public instruction (Lev. ch. 30) suggests that a well-made commonwealth would bolster patriarchal family, would exact respect for public rank, including practices for honouring sovereigns, and would cultivate a facsimile of living by the golden rule under civic rather than Church direction. These are the ingredients of a sort of way of life, though not the way of life of an identifiable people conscious of its history or of an identifiable homeland.

Emergency response in liberalism with Hobbesian sobriety Hobbes, Schmitt, and Walzer agree that there can be justified, illiberal responses by governments to emergencies in the form of threats of imminent internal or external war. Hobbes thinks that threats of war are permanent, and that the illiberal response should consist of permanent, authorized dictatorship serving the goal of public security. Schmitt agrees with Hobbes that the illiberal response to emergency should be permanent dictatorship, but he disagrees with Hobbes about its form. Dictatorship should be personal, vested in someone whose will is in tune with that of a people. That person’s goal should be to realize that people’s will in a historically situated struggle with other peoples, who are its antagonists. Dictatorship is not directed, as in Hobbes, to protecting individuals from one another.

140

Liberalism and emergency response: national community

Walzer agrees with Schmitt that a government can represent a people or a community, and that threats to a people’s way of life can constitute an emergency. Walzer further agrees that a government can meet threats to a people’s survival by illiberal means, even means which are normally absolutely prohibited. But he denies that a government should be a dictatorship, let alone a permanent one, and he does not seem to believe that serious threats to a community from within or without are inevitable. Again, a Walzerian government that gets its hands dirty, does so self-consciously, knowing that it violates a rights absolutism, including presumably a liberal rights absolutism. So while emergency can exceptionally justify illiberal, and therefore normally objectionable, action, what that action is an exception to – the normal politics it departs from – is liberal. A compromise can be effected between Hobbes on emergency and Walzer on emergency. The compromise takes the form of liberalism with Hobbesian sobriety. Liberalism with Hobbesian sobriety, as we have seen, incorporates rights, but without rights absolutism. Certain civil rights can be overridden in emergencies, but they are supposed to be respected by both individuals and states in normal times. Normal times are also constrained by Razian ‘social forms’. Social forms are the necessary background for the choices that one’s culture and the state make available. They are not things that people dedicate themselves to preserving. They constrain the pursuit of well-being by excluding certain ways of pursuing and achieving goals. They also constrain emergency response in the sense that they help to define the normal that emergency response is supposed to return people to. Emergency response must not destroy social forms if there is to be a return to normal, but social forms are not what emergency response protects. Emergency response protects the individual pursuit of well-being within social forms. So the social forms of liberalism with Hobbesian sobriety are not the same as what Walzer calls a community’s way of life: they are more like the preconditions for that way of life. Nor are social forms or individual life-organizing choices supposed to have a value comparable to the value of life. It is true that some things in Raz’s scheme have a value comparable to the value of life. Raz’s claims about the value of loyalty and integrity in the pursuit of individual life-organizing goals verge on making the value of central projects and attachments close to the value of life itself, but,

Emergency response in liberalism with Hobbesian sobriety

141

as was pointed out in Chapter 3, these claims seem neither inevitable nor plausible, and elements in Raz’s doctrine representing Hobbesian sobriety put pressure on them to be dropped. In any case, there is no suggestion in Raz of a state fundamentalism about social forms or anything else comparable to either Schmitt’s fundamentalism about a people’s will or Walzer’s fundamentalism about a way of life. What contributes the Hobbesian sobriety to Razian liberalism is a certain weighting of the right to personal security among rights. ‘Security’ means ‘security of life and limb’ as opposed to ‘security of a way of life’, and departures from liberal democracy are permissible if not to depart from liberal democracy at a particular time conflicts with security. The position is Hobbesian, as opposed to unreconstructed Hobbes, because it assumes personal powers of detachment from appetites and personal interests in individuals, powers which democracy makes use of, but which authorized dictatorship (Hobbes’s preferred regime) bypasses. An unreconstructed Hobbesianism indeed suppresses personal judgement, since it takes the fact that there are many loci of such judgements as an ingredient of war. The capacity for detachment enables each person with interests to see them as interests among others and enables each person to reject policies which are biased towards the interests of one or a few. So policies which differentially satisfy the personal interests of rulers are out, just as they are out in unreconstructed Hobbesianism. Policies which favour the present over the future are similarly excluded. But rulers are not the only political agents subject to a norm of not thinking only of themselves in the present: in neo-Hobbesianism each of the governed is subject to this norm as well. In their case, too, the biasing power of self-interest has to be counterbalanced by the ability to see one’s own interests as interests among others. The same capacity that allows agents to see themselves as counting for no more than one enables them to see themselves as individuals among others, but not necessarily as individuals among others tied to the same nation or religion. The self-image of an agent who exercises detached judgement may be only a picture of an individual living with others, interested in protection, and pursuing some sort of plan of life including productive labour. In other words, an agent can conceive of himself existing or continuing to exist without a Walzerian community, a religion, or other staples of identity politics. It is true that to be a citizen is not to view things from the point of view of humanity. One’s

142

Liberalism and emergency response: national community

view of oneself is less abstract than as one human being among others: one is a co-subject of laws and sometimes a co-citizen with those one lives with. This does not mean that one is tied by nation to one’s co-subjects. One is tied simply by living in the same place and being subject to the same laws. Where one comes from is irrelevant; so is one’s native language or ancestral ties. The same detachment that makes the transcendence of identity politics possible also provides the antidote to a certain kind of fundamentalism. If I can be a citizen without participating in, or extending, a long-standing way of life, then threats to the continuity of a way of life do not necessarily imply an end to me; and so my security is not threatened when my language is in decline, when a much-loved musical tradition is diluted, when the national church ceases to attract worshippers, or when peaceful inward immigration is taking place on a large scale in my country. To put the point another way, nationality or culture or religion cannot be conceived from the viewpoint of liberalism with Hobbesian sobriety to be essential to who one is. No citizen, exercising the powers of detachment that liberalism with Hobbesian sobriety requires, would rather die than lose that nationality or culture or religion.15 On the other hand, the value of continued life itself is hard to see from a detached point of view as trumped by much else, since so much else of value, if not everything else, presupposes continued life, either one’s own or those of other people, including people one cares about. Accordingly, assault directed at individuals, indiscriminate terrorist attack, and military threats are, from a detached point of view, bad. By the same token, policies which counteract these things are not merely optional. Although neo-Hobbesian detachment can separate me from the stuff of many fundamentalisms, as well as many supposed obligations of fundamentalism, it does not tell against an imperative 15

The citizen bargains for opportunities to satisfy whatever desires the security of each permits, and to refrain from the satisfaction of desires it is unsafe for everyone to pursue. This need not be the end of religion, even in places where people fight over religion. To echo a point made by Hobbes, security may exclude opportunities for divisive displays of religious and nationalist fervour, but it does not exclude religious and national fervour itself. From the detached point of view afforded by Hobbesianism, certain beliefs may have to be kept out of public view if for them to be expressed outwardly is to threaten the peace. But believing is compatible with not displaying a belief for the sake of the peace.

Emergency response in liberalism with Hobbesian sobriety

143

of self-defence, or of the defence by governments of individuals against internal or external attack.16 16

If liberty and security are to be shown to be complementary, that needs an argument in the face of the strong intuitive or conventional sense that they can, and, in the post 9/11 world, do, pull in different directions. Fernando Teson ‘Liberal Security’ in R. Ashby Wilson, Human Rights in the ‘War on Terror’ (New York: Cambridge University Press, 2005), pp. 57–77) is one of the few writers who takes seriously the intuitions and tries to reconcile liberty and security by finding liberal grounds for the intrusions of security measures, including counter-terrorism. His argument is particularly relevant to our preoccupations, as it is contrasted with what he takes to be a Hobbesian position: Conventional thinking poses the problem as a dilemma: democratic governments have to choose between two competing values, freedom and order. The more freedom civil society enjoys, the closer it is to anarchy, as it allows room for predators to victimize others. Conversely, if civil society wishes to curb predatory behaviour, it runs the risk of sacrificing the very freedoms that justify its existence in the first place. Let us call this the Hobbesian Dilemma. I argue that the starkness of the dilemma is overstated by all sides in the current debate about liberal security. Human rights and security are not antithetical values. Contrary to appearances, security measures are not justified by values other than liberty, such as order or stability. Security measures can only be justified by the very moral principles that legitimize the state in the first place: the imperative to preserve and protect the liberal constitution . . . I suggest that whatever the balance may be, it should be justified, if it is, by an appeal to freedom, not to order. Liberal security is the flip side of freedom. (pp. 58–59) Teson defines a ‘security threat’ as ‘actual or foreseeable acts of massive violence against the lives or liberties of citizens of a democratic state’ (p. 59). The illiberal intent of some of the agents who are willing to unleash this violence ‘may aggravate this threat in that it may make it transparently directed not only against life, limb, or property, but against liberal democratic institutions themselves’(p. 59) Since an anti-liberal intent lies behind many security threats, action against them is justified by liberalism itself. Such a position is supposed to avoid the excesses of ‘human rights absolutists’ – liberals who ‘may believe that a life with diminished rights is not worth living’ (p. 61) But it is also supposed to avoid the excesses of conservatives, who, in what Teson thinks is a Hobbesian frame of mind, ‘are all too ready to regard security as an intrinsic goal, and human rights as luxuries or by-products that should be set aside when our security is threatened’. Hobbesian conservatism may be in order if the security threat looks like leading to the total collapse of the order it is directed against, Teson suggests, but it is an inappropriate response to the actual security threat to ‘modern-day democratic societies’. Liberal security is realized in a society that tries to maximize the total system of liberties (pp. 67–68; 75), but which is willing to limit individual liberties in the interest of such maximization. On this view, the justification of a fight

144

Liberalism and emergency response: national community

against Islamist terrorism may have something in common with the restriction on free speech to exclude hate speech: because the intentions behind hate speech and Islamic terrorism are anti-liberal, there is an argument from the value of liberty for restricting both. The idea that liberties across the board could sacrificed for security does not arise; on the other hand, the consequences of unrestricted liberty for total liberty are given some weight in arguments for restricting liberty. A crucial assumption in Teson’s argument is that ‘order and security are not independent values: they are parasitic on our commitment to liberty’ (p. 75) As we have seen, a security threat is defined by Teson as either a threat against life and limb or a threat against liberal institutions. But this, like the insistence on the parasitism of security as a concept, seems to me to be pure stipulation. Threats to security are perfectly conceivable in the absence of political order, and in the absence of any commitment to a liberal political order. This is because harm to individuals and loss of individual life is not conceptually connected to liberty or to a political constitution. In a way this is Hobbes’s insight. Death and pain are bad, period. What is more the impulse to avoid pain and death is naturally strong, where ‘naturally’ means independently of humanly constructed structures, including structures for living together. We fear pain and death, including pain and death from violence, without needing to be taught to fear them, and political arrangements – arrangements for people living together – have to accommodate themselves to those facts, rather than the other way round. Call this the priority of pain and death. This priority is what seems to suggest that security – understood as protection against pain and death – is not parasitic on the value of liberty or indeed on any political value at all. This is why (as Hobbes thought) death and how to avoid it might be an uncontroversial starting point for arguments about politics – because the avoidance of death had to be a promise of any political constitution. Is it not in any case perfectly evident that being free is conditional on being alive, and not conversely? If so, then Teson has things the wrong way round: liberty is ‘parasitic’ on security, at any rate where ‘security’ means protection against avoidable loss of life, and not merely the preservation of ‘order’. It is plausible to say, of course, that security can mean more than not being faced with life-threatening dangers. It is plausible that security means freedom from well-founded fear more generally, where proper objects of fear can include humiliation or ostracism, not just physical pain and death. To be the object of hate, especially the hate of many people, is to be insecure, even if the signs of hate do not rise to the threshold of physical attack. Again, one’s insecurity can rise even if hostility is absent, e.g. if local sources of customary help are absent or withdrawn, and if one needs that help. Here is where the protection of people in the exercise of their freedoms may require strong liberal or social democratic institutions, or short of this, social forms of mutual aid or charity in Raz’s sense of ‘social forms’. Someone who fears being shunned or insulted or assaulted because of unchallenged racism, or someone who is in danger because she ignores the marriage customs of a diaspora community in favour of the marriage customs of a host community – such a person needs more than a bodyguard. She needs institutional support for certain core rights – the right not to be discriminated against and the right to marry someone of her own choosing. But to say this is not to say that, after all, the value of liberty and the

Emergency response in liberalism with Hobbesian sobriety

145

Now Hobbes’s concept of a good law implies that while a restrictive, coercive regime promotes security, not every such regime promotes security as well as any other. Too much restriction weakens and impoverishes the governed so much that their submission to a central authority does not really make available to the central authority a substantial enough power for redirection or rechannelling toward public security. This is a roundabout way of saying that security requires a modicum of liberty, especially the liberty of working and keeping some fruits of one’s labour. Liberalism with Hobbesian sobriety follows unreconstructed Hobbesianism in seeing a value for liberty up to the point at which a detached view of the matter would suggest that liberty encourages violations of the peace more than maintenance of peace. It is consistent with liberalism that a committee of democratically elected representatives of the many be charged with arriving at this detached view on behalf of the many. It is not consistent with a sober Hobbesian liberalism that civil liberties be constitutionally protected independently of the value of security and independently of evidence at a time of imminent threats to life. Anything that threatens life where people live concentratedly together is part of what people have a right to protection against under liberalism with Hobbesian sobriety, and some liberties, such as the liberty to bear arms or to criticize a religion or a political stance can be exercised in ways that threaten security. Under the unreconstructed Hobbesian contract and liberalism with Hobbesian sobriety alike, life-threatening exercises of liberties are not more hallowed than life-threatening actions in general. On the contrary, all life-threatening actions that are not themselves defensive are deplored. All justify intervention by the authorities, and private resistance from whomever is their actual or likely target if the threats are imminent. Unreconstructed Hobbesianism emphasises threats to life from fellow human beings, especially those who are close at hand and likely to be one’s rivals for local goods. War is the most generalized and extreme form of that threat, at least in the Hobbesian category of ‘avoidable calamity’. An updated Hobbesianism, whether liberal or value of security are impossible ever or often to disentangle, still less that liberty is prior to security. On the contrary, in the far from few cases where the two are able to be disentangled because political order has entirely collapsed, security is prior, because of what I called the priority of pain and death.

146

Liberalism and emergency response: national community

not, must operate with a more inclusive understanding of avoidable calamity. Technology that gives early warning of natural disasters, and that therefore enables the avoidance of death from hurricanes or tsunamis, at the same time increases the responsibilities and obligations of governments beyond what Hobbes could have imagined. And the same industrial capacities that create the technology introduce other threats, notably the threat to life, food production and global order of climate change. Neo-Hobbesianism need not confine the class of avoidable calamities within the narrow boundaries that unreconstructed Hobbesianism does. What about life-threatening actions on the part of the state? Since the state in Hobbes is conceived essentially as a security device, is there no room within a Hobbesian framework for the thought that the state itself might pose a threat to citizens? It is sometimes held that Lockean refinements on the social contract are needed if this threat is to be acknowledged.17 But neither unreconstructed Hobbesianism nor neoHobbesianism denies that sovereigns can be dangerous to subjects. It is true that, in the Hobbesian set-up, compliance with the social contract can never be obligatory and life-threatening at the same time, and it is true that people setting up a commonwealth for the first time are supposed to do so only on the condition that it increases the prospect of security. None of this, however, rules out defective states or defective people. There can be no legitimate government that murders or starves or impoverishes its citizens, but this does not mean that an illegitimate government will not succeed in murdering, starving or impoverishing its citizens. If it does so, however, it goes against the purpose of the state and frees people of the obligation to submit. Even the arguably legitimate but dangerous citizenly duties of submission to lawful punishment and military service are given special treatment by Hobbes because they seem to be inconsistent with the security function of the state. In the unreconstructed theory, no one is obliged to surrender meekly to the death penalty or to conscription into an army that is likely to see hostile action. Instead, there is a right of resistance in the one case, and the right of finding a willing proxy 17

Cf. Michael Freeman, ‘Order, rights and threats; terrorism and global justice’ in Richard Ashby Wilson, ed. Human Rights in the ‘War on Terror’ (Cambridge University Press, 2005), section 2, pp. 38–41, which contrasts Hobbes with Lockean theories.

Emergency response in liberalism with Hobbesian sobriety

147

in the other. Where less than life is at stake, however, resistance is outlawed, since it is a term of the contract that one be willing to carry out the sovereign’s will as declared in law – whatever that turns out to be – when it is physically safe – i.e., carries no risk to life or limb to do so. In liberalism with Hobbesian sobriety, it is not a condition of citizenship that one delegate the right to decide the means of security and well-being. Individuals can exercise judgement themselves, but on condition that they try for detachment from the biasing power of the present and the self. So long as one does not surrender to one’s own self-serving aims and immediate gratification, one need not make oneself a channel for the government’s will, and so there is room for non-violent dissent that unreconstructed Hobbesianism rules out. By the same token, there is room for sovereignty that is continuously or periodically authorized by the many, and that can be taken back: no blank cheque is issued, even between elections. The status of authorizer, what is more, is retained by each of the many through changes of government and changes of law, so long as such retention is no security threat. Laws would be illegitimate that both drew authority from the many and took away the authority of the many – say by depriving them of citizenship or imprisoning them to remove them from political life. By privatizing detached judgement, liberalism with Hobbesian sobriety multiplies the number of agents who cannot lightly be ignored or interfered with. Nothing less than a threat to the lives and limbs of the many is required for government to go its own way in the face of the detached judgements of the many.

6

Legislating for emergencies and legislating in emergencies

Although it seems to me to be possible to apply the sober Hobbesian approach to emergencies of all the kinds surveyed at the beginning of Chapter 2, I confine myself in what remains of the book to just a few examples – domestic terrorist threats conceived as emergencies, international conflict situations appearing to justify humanitarian intervention and, quite differently, climate change. Recall that in Hobbes, sovereigns lay down no rights and are under no binding obligations. They accept the responsibility for the protection of the many but make no contract with the many. With the responsibility goes complete discretion to decide on the means of protecting the many from one another and from external attack. If the sovereign decides that a universal curfew in the hours of darkness is required for domestic security, he may impose such a curfew. If he thinks that a charm offensive, consisting of friendship-building visits to neighbouring countries, is in order for the sake of preventing external aggression, then he is entitled to embark on the charm offensive. Of course, not everything that the sovereign decides to do will necessarily work. The curfew may protect the many at the cost of their feeling imprisoned in their homes. The charm offensive may make the sovereign look foolish and weak abroad. But so long as the measures that the sovereign adopts are intelligible as peace-building or peacemaintaining measures, and adopted because he thinks they are, they do not give the many reason to regret their gift of submission, and so the sovereign behaves as a sovereign ought to, according to Hobbes. Apart from gestures made in the international arena to other heads of state, the main medium for the sovereign’s security measures is domestic law.1 Through law, in particular, the advertised penalties for assault, theft and murder, the many are given reasons for refraining from violence of all kinds, reasons they could not have had in the state 1

See Leviathan, ch. 30.

148

Legislating for emergencies and legislating in emergencies

149

of nature. Law is supposed to stay violent people’s hands, but it is not supposed to be a straitjacket. This is where Hobbes’s concept of good law comes in. For a law to be good, it has to be necessary for security, not simply a recognizable security measure. A law taxing people in order to raise money for military weapons would not be necessary if it predictably left them so poor that they had to steal or kill to get enough to eat. Far from being necessary, the measure would be self-defeating. Similarly, an all-night curfew might keep malefactors and their possible victims at a safe distance from one another, but if the curfew also interfered with movements of food supplies or caused people to feel imprisoned in their own homes and receptive to demagoguery intended to make them rise up against this confinement, then again it would be an invitation to violence rather than a safeguard against it. In a different way, a law enabling precautionary personal searches might be unnecessary if it were introduced without any evidence that, in the places the searches were carried out, people were hiding dangerous materials or weapons. Hobbes’s concept of the good law suggests that a balance needs to be struck. On the one hand, the legal regime should recognize sources of harmless well-being – a reasonably full stomach, family life, unencumbered movement for those minding their own business – and allow the many to get on with the enjoyment of these things. The many must also have the freedom to work and create the wealth to pay for an unavoidable defensive war and routine internal policing. On the other hand, the legal regime should snuff out violence as far as possible and restrict whatever liberties encourage violence. Good law calls for two forms of self-restraint on the part of the sovereign. The first is the restraint of the appetites of the natural person the sovereign is, if the sovereign is a monarch, or the natural appetites of the few who are members of an assembly, if sovereign is an assembly. The demands of the appetites of the self or selves must be subordinated to the security needs of the many.2 Second, the sovereign must not think that his opinion alone counts. Though it is worse to be dependent on too much advice than to use one’s own head as sovereign, best of all is to listen to the advice of good counsellors – those who give 2

For elaboration, see my ‘The burdensome freedom of sovereigns’ in T. Sorell and L. Foisneau, eds. Leviathan After 350 Years (Oxford University Press, 2005), pp. 183–196.

150

Legislating for emergencies and legislating in emergencies

dispassionate advice for the sake of public safety when asked.3 In particular, a sovereign ought to make use of civil science – that is, read Leviathan or De cive, which Hobbes perhaps intended as counsel of a particularly superior, conclusive, kind.4 What ties these two forms of self-restraint together is the way both act against personal bias and personal passions and make detached judgement the basis of law. On the one hand, in framing laws or policies, the sovereign tries to take the point of view of the many he personifies rather than his own personal point of view; on the other, he is supposed to form a judgement based on the views of those whose experience makes them expert, or on the basis of rigorous reasoning. He is not supposed to be guided by mere personal hunches, or by the badly worked out advice of a horde of sycophants. Hobbes’s civil science contributes more than a requirement of detachment for law-making: it gives pointers to the content of the law and the conduct of legislators.5 It prohibits speech from subjects who criticize or demean the sovereign. It attempts to demolish the belief that individual judgement is authoritative. It denies individual property rights. It tells against free trade. In short, from the detached point of view as filled in by Hobbes, the appropriate legal regime is deeply illiberal. Now, as was noted in Chapter 4, we generally assume that emergency situations are temporary departures, often short-lived departures, from circumstances in which there is no imminent, large-scale threat to life. Not only do we take normal circumstances to pose no imminent threat to life; we suppose that, normally, an effective regime against violence is compatible with recognized liberties to criticize the authorities, to hold property, and to sound off as if our opinions mattered. The fact that these liberties are recognized internationally in much-ratified treaties that also recognize emergencies is evidence that international legal norms are in keeping with the assumptions just stated: in normal circumstances illiberal legislation is out of order. But in the post 9/11 world, it is sometimes thought, a new normal is emerging, that, is a legal regime appropriate to a prolonged period of emergency.6 It is a regime typified by legislating for emergency within 3 4 6

See Leviathan, ch. 25, p. 182. 5 See my Hobbes (London: Routledge, 1986), p. 135. See Leviathan, ch. 29. See the phrase ‘new normal’ is inspired by US Vice-president Dick Cheney’s claim that the steps being taken against counter-terrorism in the US after

Legislating for emergencies and legislating in emergencies

151

a supposed period of emergency. The acceptability of a new normal is the subject of this chapter. I shall argue that even when a new normal is motivated by a concern with security, it is not necessarily acceptable: for one thing, the new regime may be predictably ineffective; for another, the threat it is directed against may not be big enough or imminent enough to count as an emergency. Hobbes has his own, unusual, ideas, about what to count as the normal case. For him, as we have seen, warlike tendencies in human beings constitute an eternal normal, and so legislation for normal times should not essentially be different from emergency legislation. Legislation in normal times has to counteract the eternally present causes of all-out war and not just the causes of local and passing violence. Moreover, counteraction is the most that can be achieved: legislation does not eliminate the causes of war in human beings. It just suppresses displays of the natural effects of those tendencies: namely fighting. More liberal regimes, according to Hobbes, are worse than ineffective in the face of these permanent aggressive tendencies. This is because a liberal regime activates the impulses that good legislation keeps dormant. The liberal regime is the insecure regime par excellence. A sober Hobbesian way of thinking is quite different from the way of thinking of Hobbes himself. It supposes that each human being has a capacity for detached judgement that can counteract violent inclinations, at least up to the point where it can get people to endorse coercive laws calculated to reduce assault and worse crimes. In this way, sober Hobbesianism denies that human beings are necessarily the playthings of their passions. It also denies that fear – of pain or death or punishment – is the only thing that can get people to do right. On the other hand, sober Hobbesianism echoes Hobbes when it suggests it is rational for citizens to co-operate, and that security is a non-controversial shared goal, because everyone can agree on the badness of pain and death. Sober Hobbesianism further insists that the enforcement of law, including penal law, is the appropriate means for making the state secure. Where it disagrees with Hobbes is in supposing that citizens can democratically agree to comply with such a law, that they have rights 2001 would become part of a ‘new normalcy’. See ‘Assessing the New Normal’, a report published in 2003 by Human Rights First, p. i. www.humanrightsfirst. org/pubs/descriptions/Assessing/AssessingtheNewNormal.pdf

152

Legislating for emergencies and legislating in emergencies

in the sense of interests generating duties on states and other citizens, and that there have to be overriding reasons for these duties not to be fulfilled. In endorsing a democratic form of political order and normal human rights, sober Hobbesianism is apparently committed to civil liberties – liberties of free speech and association – and welfare goods – education primarily. Nevertheless, when it comes to emergency, sober Hobbesianism is likely to agree with non-Hobbesian liberals that if the suspension of civil liberties is justified at all, the circumstances in which suspension makes sense should be identifiable in normal times. There is no commitment in sober Hobbesianism to the idea that widely distributed inclinations to go to war belong to an eternal normal. Emergency, where it takes the form of war, can be supposed to be a life-threatening but exceptional result of beliefs and passions that may be historically and geographically specific and short-lived. Again, the goal of emergency legislation in sober Hobbesianism can be to make emergencies as short as possible, permitting a quick return to an old normal, not the construction of a new one. And there can be a presumption in sober Hobbesianism against a prolonged new normal, since that can in principle be fatal to e.g., the security-enhancing customs of the old normal. The upshot of the preceding is that, in sober Hobbesianism, legislation for emergencies will not be, as it is in Hobbes, legislation for periods of crisis that are permanently in the offing just below the surface of social life. Instead, emergency legislation7 will be formulated in the absence of imminent threats to life and will be subject to standards applied to legislation in normal times, to expectations of constraints on government action in abnormal times, and to the desirability of a return to normal times from an emergency situation.8 This does not mean that the criteria for evaluating legislation in sober 7

8

Legislation rather than a constitutional provision. For the general significance of the difference, see J. Frerejohn and P. Pasquino, ‘The law of the exception: a typology of emergency powers’ International Journal of Constitutional Law 2 (2004) 210–239. See esp. 215f. Sober Hobbesianism thus fits into a rule of law tradition rather than a tradition of unfettered sovereign prerogative. How far the rule of law tradition can cope in theory and practice with latitude for government response to emergencies, and with the decisions that have been made by judges post 9/11, is a complicated question. See D. Dyzenhaus, ‘Schmitt v. Dicey: Are states of emergency inside or outside the legal order?’ Cadozo Law Review 27 (2005) 2005–2039 – also included in The Constitution of Law (Cambridge University Press, 2006), pp. 35ff.

The old normal, the new normal and the abnormal

153

Hobbesianism are the same as in mainstream liberalism: in sober Hobbesianism, all legislation is constrained to promote or be consistent with the autonomous pursuit of goals only if security – soberly but not modestly conceived – is maintained by doing so. But since the mechanism for deciding on security measures is democratic detached judgement in normal times, the distorting effect of imminence, with its invitation to illiberalism, is kept to a minimum.

The old normal, the new normal and the abnormal Surveys of post 9/11 legislation and government action internationally seem to reveal at least four trends: (1) an increase in public and covert surveillance in liberal democratic states;9 (2) ad hoc revision of the law in certain liberal democratic states to limit protections for suspects in counter-terrorism investigations;10 (3) exploitation by liberal democratic state security services of investigatory practices and detention in illiberal states;11 and (4) opportunistic uses by illiberal states of counter-terrorism as a pretext for illiberal measures directed at ordinary citizens of those states.12 I shall focus first on (2). It is exemplified by legal measures introduced in the US and the UK to provide for prolonged and even indefinite periods of detention without charge for suspects in counter-terrorism cases. It is also exemplified by the creation ad hoc of special tribunals to try such suspects, tribunals operating under unusual rules, and by attempts to deport foreign counter-terrorist suspects to human rights-abusing, and in particular jus cogens-violating, jurisdictions. Sometimes such measures involve derogations from human rights treaties, as in the UK government derogation from the European Convention of Human Rights (ECHR), Article 5, in November 2001. 9

10

11 12

www.privacyinternational.org/survey/phr2003/threats.htm#Increased% 20Communications%20Surveillance%20and%20Search%20and% 20Seizure%20Powers. Neil Hicks, ‘The impact of counter terror on the promotion and protection of human rights: a global perspective’ in R. Ashby Wilson, ed. Human Rights in the ‘War on Terror’ (New York: Cambridge University Press, 2005), pp. 216–217. See J. Mayer, ‘Outsourcing torture’ New Yorker 14 February 2005. Ashby Wilson, Human Rights in the ‘War on Terror’ (New York: Cambridge University Press, 2005), p. 215. For a perspective other than an AngloAmerican one, see W. Sadurski, ed Political Rights Under Stress in 21st Century Europe (Oxford University Press, 2006).

154

Legislating for emergencies and legislating in emergencies

Can (2) be justified? Clearly a liberal justification is difficult or impossible to mount, particularly when human rights protections, such as those codified by the ECHR, and the UK counterpart of that Convention, the Human Rights Act (1998), have something like the force of Constitutional provisions. Is it any easier to mount a sober Hobbesian defence? That depends on how Hobbesianism bears on ad hoc revisions of the law in general, on whether, in the circumstances in which ad hoc revisions are being introduced by the UK and the USA, they are genuine emergency measures, and on whether, even if they are regarded as emergency measures, they are necessary or sufficient for preventing a significant loss of life. When these different considerations are weighed, I shall suggest, a sober Hobbesian approach is no more likely to vindicate (2) than a more mainstream liberalism. It is true that in unreconstructed Hobbesianism the sovereign is above the law and able to impose it or repeal it at will.13 Even in that version of Hobbesianism, however, the sovereign is subject to the moral Law of Equity. As the ultimate judge of right and wrong, the sovereign falls under what Leviathan counts as the eleventh law of nature: . . . if a man be trusted to be judge between man and man, it is a precept of the Law of Nature, that he deale Equally between them. For without that, the Controversies of men cannot be determined but by Warre.14

Not that this is a precept that the sovereign is obliged to follow in practice, if he sincerely thinks that his, i.e. the public’s, safety, is imperilled by doing so; the laws of nature only oblige in the sense of having to be given weight in foro interno, i.e., in deliberation before it issues in action. It may be overridden if, e.g., the agent’s life might be lost by abiding by it. The question is whether a breach of the law of equity can typically be sincerely thought to be overridden by considerations of public safety.

Detention Many of the revised rules of detention and trial in counter-terrorism that we are considering deal unequally between offenders involved in terrorist action and people thought to be involved in highly organized 13

Leviathan, ch. 26, Tuck, ed. p. 184.

14

Tuck, ed. p. 108.

The old normal, the new normal and the abnormal

155

violent crime or successful long-term serial murder. But it is unclear that the danger to the public posed by these sorts of criminals need be greater than the danger posed by terrorism, and so it is unclear whether different methods of detention are necessary either. Admittedly, certain considerations do distinguish the cases, e.g., the greater legal difficulty in some terrorist cases of assembling evidence, of exposing the identities of witnesses, or of introducing evidence that might allow terrorists to draw inferences about the sources of evidence; but these are not considerations that trump a law of nature in unreconstructed Hobbesianism. When it comes to sober Hobbesianism, there is no presumption that the sovereign is above the law, and no presumption that Equity in Hobbes’s sense fails to apply. On the contrary, the presumption that everyone counts for one and no more than one is written into the exercise of democratic detached judgement that is at the heart of sober Hobbesianism. From the angle of sober Hobbesianism it matters that suspects held for having harmed or murdered or for planning to harm or murder are treated similarly. Departures from equity might in principle be justified if an imminent threat to life on a significant scale could be counteracted as a result – in short, if the context for the departure were an emergency situation. It is not entirely clear that this is the context for changes to detention rules that we are considering. The fact that wars are emergencies, and that ad hoc counter-terrorism procedures are routinely represented as belonging to an on-going ‘War on Terror’ no more establishes that the threshold for emergency has been met than a ‘declaration of war’ against gang crime would justify comparable changes to the detention and interrogation regime for gangs with a record of murder and assault. Again, the UK government’s counter-terrorism strategy15 contemplates a long-term effort of challenging the claims of Islamic extremists among the UK Islamic community so as to undercut terrorist recruitment and radicalization more generally; if this is an emergency measure, it is a necessarily slow-working one, and one that is conducted by persuasion rather than by legislative change.16 Could persuasion over the long term and anti-radicalization by media techniques really 15 16

http://security.homeoffice.gov.uk/counter-terrorism-strategy. ‘Preventing Extremism Together’ Report of Working Groups (August 2005) www.communities.gov.uk/documents/communities/pdf/152164.pdf.

156

Legislating for emergencies and legislating in emergencies

be represented as measures being adopted in an emergency? Being slow working, they cannot possibly be effective against an imminent threat to life. Operating as they do to change minds, they must be assumed to be pitched to people who are not so consumed by fear or distrust that they cannot be receptive to the relevant messages. In other words, the context for this part of the counter-terrorism strategy is not being assumed even by the UK government to be a state of emergency. Rather, it is a state of heightened public attention and willingness to express views in a speech setting subject to familiar liberal rules. Admittedly, the heightened public attention may belong to the aftermath of an emergency situation, namely the 7/7 attacks in London in 2005, but that emergency situation was not part of a longer emergency that started in New York in September 2001; it was a short-lived, local emergency situation from which the people affected – perhaps inhabitants of Central London at most – subsequently returned to normal, or something close to normal. In claiming that the context for UK counter-terrorism strategy is not an emergency context, I am not in the least implying that there is no terrorist threat to worry about, or that it does not call for some extraordinary measures. I am claiming rather that it is not an emergency context in the sense of the UK being permanently on the verge of attack. Even the UK authorities concede variations in threat levels, not all of which indicate the high probability of, e.g., another 7/7 bombing. I am also claiming that the introduction of extraordinary measures needs justification. When extraordinary measures are proposed and ordinary measures might be effective, the onus is on a government to show that those extraordinary measures are necessary for the sake of preventing loss of life or other significant harm. I take this to be in the spirit of Hobbes on ‘good’ law. Not only must the new measures be necessary – in the sense that they act on a threat that the ordinary measures do not act on; they must indicate a route from the extraordinary back to the normal, or indicate a connection between the institutions for the normal administration of justice – which command a wide consensus – and the abnormal. Extraordinary measures can meet these conditions by being timelimited and by needing authorization when they are used from those who are familiar with legal norms for normal times and capable of judging the relative claims of security and liberty in particular cases. Extraordinary measures can also meet these conditions by passing

The old normal, the new normal and the abnormal

157

through a legislative process in normal times in which the opinions of security experts and human rights defenders are given a fair hearing. These requirements are met more fully by UK detention and deportation regulations than by, e.g., ad hoc provisions in the US for the detention and trial of those once imprisoned at Guantanamo. In the case of Guantanamo, inmates were taken by the US government to have the status of military irregulars and a tribunal regime was invented for them mostly under the direction of the Executive branch,17 as opposed to the legislature.18 The Judiciary, what is more, made a series of objections to the departures of this invented regime from Constitutional protections, ruling in June, 2008 that Guantanamo detainees could challenge their imprisonment in US courts.19 When it comes to the justification of the ad hoc detention measures we have been considering, then, we find that there is a fall at the first hurdle: that of demonstrating their necessity. Where there is clear evidence that some of those detained without charge are dangerous, that can usually be made material for a criminal prosecution and so for the customary detention with charges, in which case detention without charges is unnecessary; where there is no such evidence, on the other hand, and so no material for prosecution, it is hard to see what evidence for the need for detention there is, either. Proponents of indefinite or long detention without charge might have a more intelligible position if there were great restrictions on legally admissible evidence of the danger posed by particular terrorist suspects, or great legal restrictions on methods for acquiring such evidence. Then indefinite detention might be claimed to be necessary for eliciting, through confession, say, evidence that could not be obtained in any other way. Even so, the case for departures in counter-terrorism from the normal standards of 17

18

19

For a complete survey of counter-terrorism legislation in the US as well as several Executive Orders dealing with Guantanamo detainees, see the heading ‘Domestic Security’ at www.counterterrorismtraining.gov/leg/index.html The passage of the Detainee Treatment Act (2005) introduced protections for detainees. It contains several loopholes, however. See www.law.harvard.edu/ students/orgs/hrj/iss19/suleman.shtml#Heading23. For a general discussion of the role judges should have in challenging the ad hoc legislation of governments in alleged emergencies, see Dyzenhaus, The Constitution of Law (Cambridge University Press, 2006). For a diagnosis of some of the sources of occasional judicial timidity in this area, see Dyzenhaus, ‘Deference, security, and human rights’ in B. Goold and L. Lazarus, eds. Security and Human Rights, (Portland, OR: Hart, 2007).

158

Legislating for emergencies and legislating in emergencies

admitting evidence, and normal methods of evidence gathering, seems much stronger than the case for departures from normal standards of detention. For one thing, violations of privacy are intuitively less serious than loss of liberty; for another, so long as surveillance is not indiscriminate and omnipresent, and so long as there are safeguards when a prima facie case for its use has been made, surveillance, including secret surveillance, seems eminently justifiable. Again, so long as the surveillance comes from sources that someone versed in normal standards of admissible evidence could regard as reliable, the dangers of the evidence being manufactured might be mitigated.

Surveillance In the UK, surveillance is of data and persons.20 Communications data, ranging from names and addresses of registered holders of landlines and mobile telephones to logs of calls made, to IP addresses and registered users of email accounts, are available to the police if a ‘necessity’ test is passed. This means persuading ‘senior officers of a public authority’ that the surveillance is required. National security is one ground for communications data surveillance, but there is a wide range of further grounds: ranging from ‘public safety’ to tax evasion to an individual’s mental or physical health. Surveillance of persons can be ‘directed’ or ‘intrusive’. Directed surveillance occurs when suspects are followed and observed in public places by police or intelligence officers. Intrusive surveillance is where observation occurs in private places: homes, hotel rooms and cars, or where communications are intercepted, usually electronically. Directed surveillance requires warrants from senior police officers. These warrants are time limited. Intrusive surveillance is considered necessary only where those observed are suspected of serious crimes and the seniority of the officers whose authorization is required is higher than for directed surveillance. Authorizations of this kind are in turn reviewed by the Office of Surveillance Commissioners. Not all surveillance evidence is legally admissible. Evidence from intercepted communications is not. The UK government has sometimes sought to avoid disclosing this evidence by introducing forms of detention and restricted movement that can be approved by law officers working under unusual rules. To the extent that the inadmissibility of 20

www.homeoffice.gov.uk/security/surveillance/types-of-surveillance.

The old normal, the new normal and the abnormal

159

this evidence is cited as a justification for recourse to these new procedures, such as those associated with ‘control orders’ under the Prevention of Terrorism Act (2005), the inadmissibility rule seems unjustified. Perhaps it deserves to be abolished anyway.21 Though admitting evidence from intercepted communications seems to erode the sphere in which anyone at all can speak his mind without fear of the consequences, the hurdle that has to be crossed for the interception to be authorized in the first place is not low. Where the benefit of intruding on unguarded conversation is the prevention of a serious crime, and where not being able to admit such evidence contributes to an arbitrary extension of powers of arrest, the badness of intrusion seems heavily outweighed. Not that privacy is of no importance. If that were so, then no hurdle at all would appropriately be put in the way of applying electronic intercepts, and there would indeed be an invitation to nosy officials to investigate the tax or medical records of people they had grudges against or were simply curious about. Nothing that has emerged so far justifies the warrantless wire-tapping that has sometimes gone on in the US since 9/11.22 But it is hard to explain or define the value of privacy entirely satisfactorily in legal terms,23 and the right to privacy sometimes claimed by citizens against the state is hard to reconcile 21

22 23

A private member’s bill to make evidence based on intercepts admissible was introduced in the House of Lords in the 2006–7 Session of Parliament. For the text, see www.parliament.the-stationery-office.co.uk/pa/pabills/200607/ interception of communications admissibility of evidence.html. ‘Bush Lets U.S. Spy on Callers Without Courts’ New York Times, 16 December 2005. www.nytimes.com/2005/12/16/politics/16program.html. See Peter Galison and Martha Minow, ‘Our privacy, ourselves in an age of technological intrusions’ in Ashby Wilson, Human Rights in the ‘War on Terror’ (New York: Cambridge University Press, 2005), pp. 258–294. It is important not to be misled by analogies in this area. The fact that it seems very undesirable to be viewable naked by others whenever they want to is not a proof that surveillance is highly undesirable, since (i) having one’s data accessed does not necessarily expose one very much; (ii) it is never supposed to be undertaken on someone else’s whim, but for the sake of some important benefit. The nakedness analogy is used by Lustgarten and Leigh in In From the Cold: National Security and Parliamentary Democracy (Oxford: Clarendon Press, 1994), pp. 39–40. B. Goold argues on the strength of the analogy and on the unpleasantness of having information about one collected without one’s consent that ‘there is a clear relationship between privacy and the construction of personal identity’. See ‘Privacy, identity and security’ in B. Goold and L. Lazarus, eds. Security and Human Rights, (Portland, OR: Hart, 2007), p. 63. This line of thought suffers from the obscurity of the associated concept of

160

Legislating for emergencies and legislating in emergencies

with their undeniable appetite for journalistic intrusions on the lives of celebrities, or voyeuristic reality television. It may also be inconsistent with the exhibitionism and self-advertisement associated with social networking internet sites. The value of privacy rises in proportion to the need to live in public, and to make public professions of belief or loyalty. Thus, in the China of the Cultural Revolution or in East Germany when the Stasi was at its strongest, the value of a sphere in which the unorthodox or irreverent could be spoken, or in which relationships independent of politics could be cultivated, would have been of the first importance.24 Where public standards of life penetrate even the fine detail of what one wears, whether one shaves, and what one reads or listens to, the value of privacy stands out very clearly. But where practically anything can be done publicly without anyone feeling embarrassed or disgusted, matters are not so straightforward. Wanting to do things in private can look and feel like prudery or evasiveness or snobbery; privacy can be seen as a cost. In between these extremes a generally valued sphere of privacy still does exist. Virtually everyone thinks that privacy is a requirement of romantic and family relationships, and such relationships seem to be highly valued universally. So if for no other reason than to protect these relationships, there should be a presumption against the violation of privacy. That said, it is hard to deny that the value of privacy can be outweighed. A terrorist who reveals his secret plans to his lover may do so in the context of pursuing a private or family life to which international law recognizes that he has a right. But if an electronic bug in his bedroom picks up the conversation in which the plans are revealed and the security services decide that the terrorist should then and there be arrested, so as to disrupt the terrorist operation and prevent loss of life, that seems perfectly justifiable notwithstanding the need in general not to penetrate the sphere of intimate

24

personal identity. The fact that information collected about me can be false and unflattering and therefore harmful to me is certainly a reason for safeguards, but this doesn’t change who I am. Nor does the cultivation by a person of a self-deceiving self-image determine who he is. Still less does the piercing of this self-image by unwanted home truths necessarily count as humiliation. The idea that each person should be able to project the self-image he likes best sounds like a spin-doctor’s charter, and not the basis for an argument, as in Goold, that privacy is a human right. Jung Chang, Wild Swans (London: Harper Collins, 1991); see also the film by Von Donnersmarck (2006), The Lives of Others.

The old normal, the new normal and the abnormal

161

relationships. The value of life hugely outweighs the value of privacy when they conflict. For one thing, life is a condition of privacy of all kinds. Surveys of public opinion – important at least for emergency measures in force in democracies – seem to show that where terrorism is concerned, even fairly indiscriminate covert access to communications and personal data is acceptable to citizens, at any rate in some regions of the world. A Eurobarometer study of 27000 EU inhabitants published in February 2008 showed that 82 per cent of those questioned had no objection to monitoring of personal details connected to taking a flight, and 75 per cent were content to have all their Internet usage monitored.25 It is possible that people who worry about violations of privacy and security make it hard for surveyors to contact them, which skews the results in favour of surveillance.26 But it is also possible that, in the popular mind, security trumps privacy where the two are perceived to conflict, so that laws permitting intrusion in counter-terrorism are legitimate. I have been concentrating on the UK. In the US, the USA/Patriot Act, introduced shortly after the 9/11 attacks, made it much easier for the government or the security services to access large data bases of, e.g., Internet providers in criminal investigations. Not only could data legally be monitored covertly, but there was no requirement to show that those whom the data concerned had committed or would commit a crime. Provisions so sweeping are very hard to show to be necessary, and so they fail even the unreconstructed Hobbesian test of ‘good law’. Similarly for the Foreign Intelligence Surveillance Act (1978) under which warrantless surveillance went on in the US. The Foreign Intelligence Surveillance Act as amended in 2008 introduced obstacles similar to those for intrusive surveillance in the UK when it comes to approval for electronic surveillance of those outside the US communicating with Americans: the electronic monitoring had to be of people suspected of involvement in terrorism. But this seems to be an afterthought, and it comes late in mitigating the effects of a law that is bad even by Hobbesian standards.

25 26

http://ec.europa.eu/public opinion/flash/fl 225 sum en.pdf. K. Haggerty and A. Gazso, ‘The public politics of opinion research on survellance and privacy’ Surveillance and Society 2 (2/3) 173–180.

162

Legislating for emergencies and legislating in emergencies

Genuine outweighing of liberty by security I have been arguing that, so long as they are sufficiently discriminating, certain illiberal measures can straightforwardly be justified by the value of security. Discriminating surveillance is a case in point. But not every surveillance regime introduced for the sake of security is discriminating enough, even when it is introduced by an otherwise fairly liberal jurisdiction. And even when a surveillance regime is plausibly claimed to promote security, that does not mean that every other illiberal measure that appears to be a security measure is necessary. As we have seen, an illiberal detention regime or an ad hoc departure from a liberal detention regime can be much harder to justify than a surveillance regime, just because liberty is more valuable than privacy, and because the protection offered by illiberal detention can fail to save much life or prevent much harm in general. The ‘War on Terror’ may be contrasted with states of more generalized civil disturbance involving looting and armed violence in a locality. For example, for about 24 hours, starting on 13 July 1977, a power cut in New York City produced a significant emergency.27 Although only four people died as a result of the disturbances that accompanied the power cut, arson and violent looting took place on a very large scale. More than 1000 fires were set, of which 14 were major: requiring the attendance of crews from many fire stations. More than 40 firefighters were injured. Nearly 4000 arrests were made. Armed vigilante groups protected some property from looters. Acres of Brooklyn property were laid waste in fires. Estimates of damage immediately after the blackout started at $150 million in 1977 dollars. Nine million people were cut off from electricity supplies, and there were many people stranded in the New York subway system, as well as some hospitals closing to new patients. Communications were badly affected, though some radio stations continued to broadcast. In a case where the emergency was severe but extremely short-lived, background liberal values on the part of citizens cannot be assumed to have eroded, and yet there was no hesitation on the part of the hastily increased numbers of police on patrol to arrest people and even carry out warrantless searches for looted property. This is because 27

For a detailed contemporaneous account see www.time.com/time/magazine/ article/0,9171,919089–1,00.html.

The old normal, the new normal and the abnormal

163

liberal values do not preclude powers of summary detention in response to mass criminality, violent criminality in particular. Although many arrests in the blackout were made for looting rather than threats to life, the scale and suddenness of disturbances were reasons to think that a general breakdown of law and order was in the offing, and therefore that departures from usual liberty-protecting procedures were necessary. Certainly there was no evidence that looters who were in turn subject to theft were unwilling to stoop to violence in defence of what they were carrying away from shops. Such violence could easily have become life-threatening. In these circumstances, it is hard to argue that the police response was disproportionate. In the New York blackout case, then, we have a clear example of a situation where arrests on a very large scale were justified, and where the violation of civil liberties, though some undoubtedly occurred, did not prompt complaints. There are several important differences between the New York blackout case and the ‘War on Terror’. The blackout was an intense, violent and highly public episode; the ‘War on Terror’ is protracted, not continuously violent, and largely conducted out of public view. Intense, violent and highly public emergencies justify strong police action and detention more uncontroversially than the ‘War on Terror’: for one thing, the imminence of the threat is undisputed and there is a great public appetite for the threat to be met. Where the threat is from covert action, there is necessarily no public clamour and action is sometimes taken in a precautionary way, before a prospective danger has become uncontrollable or a serious offence has taken place. Again, the ‘War on Terror’ is global and conducted sometimes by people who are unfamiliar, and out of sympathy, with liberal values. This means that the authority of liberal values is not, as it would have been in New York in 1977, deeply entrenched. To the extent that the ‘War on Terror’ is directed against terrorist conspiracies, its function is preventive, with liberties being violated sometimes before any crime, or any serious crime, has been committed. In the New York case, the police response was reactive, prompted by compelling evidence of wrongdoing. Far from bringing to bear extreme measures in extreme times, the measures implemented in the New York case appear to have been proportionate, routine (arrest and detention), though carried out by larger than normal numbers of police and (when it came to detention) in temporarily very crowded facilities. In the ‘War on Terror’, on the

164

Legislating for emergencies and legislating in emergencies

other hand, some of the means of eliciting information and confession satisfy the definition of ‘torture’ in international law.28 These differences have a bearing on the liberal democratic acceptability of the two sorts of emergency response, that is, the acceptability of them from a detached point of view in a non-emergency situation. In the New York case, partly because of the abbreviated time and relatively small space in which it took place, the only feature of the police response that was exceptional was its scale, speed, and at the margins, its cutting relatively minor procedural corners. The crimes prosecuted were already well recognized; the methods employed were not those of special police. Counter-terrorism invokes exceptional law and sometimes employs unidentified agents operating secretly and with exceptional powers. These agents cannot stand in the same relation to the public as those who also serve in non-emergency situations and who do so then neither secretly nor with exceptional powers. In general, emergency measures that take away people’s liberties are more justifiable the more they resemble the measures taken in the New York blackout case. The more they are responses to actual violence in which the law-abiding public is caught up and helpless, the more they keep to the norms of ordinary policing, and the more that they are taken in public with the support of the public, the more they are legitimate. This is not to say that legitimate interference with people’s liberties must always be reactive as opposed to preventive. The long-established practice of forcibly detaining and isolating carriers of contagious disease is clearly justified by the badness of mass illness and death, but the tests for being a carrier of a contagious disease are usually much more conclusive than evidence of someone’s engaging in a terrorist conspiracy, let alone evidence for being a terrorist “sleeper” – someone secretly waiting to be called into action in some Western country e.g. by Al Qaeda. That is why detention as opposed to surveillance of members of suspected terrorist conspiracies is harder to justify than coercive, preventive public health measures. The fact that an illiberal measure is preventive, however, is not a proof of its being unjustified. 28

It goes without saying that if even the unusual detention rules employed in the ‘War on Terror’ in liberal jurisdictions fail the necessity test, and so are impermissible even by Hobbesian standards, then torture fails it even more resoundingly.

Normal vs. abnormal again: domestic and international law

165

Normal vs. abnormal again: domestic and international law I have been arguing that the acceptability of a new normal post 9/11 is doubtful not only from the point of view of a scheme of values which subordinates security to liberty but also from a sober Hobbesian perspective in which the appreciation of the value of security is much more vivid than in other liberal theories. Even when security trumps liberty, many of the distinctive measures of the post 9/11 legal regime in the US and UK can be held to be illegitimate. Not that the agreement between the liberal and sober-Hobbesian approaches is total: the support that sober-Hobbesianism gives in principle for extensive but discriminating surveillance is one point of rupture. There is reason to think that, for lawyers at least, the question of the new normal is not a new question.29 There have been many cases over the last 50 years in which emergency powers have been granted to governments and not relinquished even when the circumstances that occasioned them have lapsed. This is so not only in illiberal regimes, where the extension of emergency powers is perhaps to be expected, but in a variety of liberal regimes, some of which incorporate human rights treaties into their laws. Not only do emergency powers routinely outlast the period in which they are introduced; provisions for legislative oversight or time limits on their being in force are regularly circumvented. The International Emergency Economic Powers Act of 1977 is an American example; the Prevention of Terrorism Act (1974) is a British one. Introduced as a temporary measure in 1974, it was made permanent in 1989 (although there has been more recent legislation since 2001). The denial of at least one right to terrorist suspects in interrogations – the right to silence – has entered mainstream criminal law in the UK.30 Sometimes legislation intended for a dependent territory of a jurisdiction introduces standards that eventually intrude into the home jurisdiction. This is what happened when the Criminal Justice and Public Order Act (1994) brought to the rest of the UK provisions that originally were intended only for guerrilla war situation in Northern Ireland.31 Under the Fourth and Fifth French Republics, measures to 29 30

O. Gross and F. Ni Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006), ch. 4. 31 Ibid. p. 186. Ibid. p. 183.

166

Legislating for emergencies and legislating in emergencies

deal with the war in Algeria in the 1950s, including torture, gradually made their way into the semi-militarized struggle over Algerian issues between Left and Right within France itself.32 Under the Fifth Republic, sweeping emergency powers inspired by the struggle over Algeria started to be associated in the French Constitution with the Presidency. Not only did this place immense power in the hands of an individual, but it detached the use of emergency powers from the apprehension of a state of siege.33 The pattern that has been seen internationally is one of a normalization of exception, a broadening of the groups subject to these measures, a weakening or elimination of the conditions under which they can be invoked, a narrowing of those involved in invoking the powers to those in states with executive as opposed to legislative powers, and an increasing willingness to exercise them in relation to domestic as opposed to foreign security threats.34 What does this trend show? According to Gross and Ni Aolian, it shows that a distinctive legal category of emergency either does not exist, or, if it does, that it cannot depend on sharp distinctions between normal and abnormal, foreign and domestic, us and them, pre-emergency and post-emergency.35 Perhaps there is no room, then, even in theory for an ‘ideal-type emergency’,36 an emergency that is, above all, temporary, and in which powers of pre-existing emergency legislation are invoked and, when the emergency is over, dropped. In any case, this ideal type is not widely represented in jurisdictions in the real world, and law geared to the ideal type should be replaced with new law geared to the typical emergency, Gross and Ni Aolian say. I am not sure that I see the force of this line of thought. Whether or not it is widely represented in reality, the specification of an ideal type can be part of what is involved in distinguishing so-called emergencies from those that genuinely justify the invocation of special powers and the suspension or limitation of liberties. There is no need to embed in the definition of the ideal type the assumption that most or all of the so-called emergencies experienced by people conform to this 32 36

33 34 35 Ibid. p. 194. Ibid. p. 199. Ibid. pp. 205ff. Ibid. p. 12. Associated by Gross and Ni Aolian with the Questiaux Report (1982) on the Human Rights Implications of States of Emergency. UN Doc E/CN.4/Sub.2/ 1982/15, pp. 22–28.

Normal vs. abnormal again: domestic and international law

167

type.37 There is no need even to concede that every emergency claimed by governments to conform to the ideal type really does so. All one need claim is that in emergencies of the ideal type, governments have particularly wide latitude for action, both morally and legally. But the ideal type of emergency may be one that as a matter of fact rarely arises, so that governments as a matter of fact rarely have this latitude, even if they behave as if they do. The ‘ideal type’ is not necessarily permissive. An important distinguishing feature of genuine emergency of the ideal type is the imminence or presence of danger to a whole national population. Evidence of a threat on this scale is not easy to invent or make compelling, particularly where the evidence is open to international scrutiny. And declarations of emergency as well as the implementation of emergency powers, are open to international oversight, sometimes triggered by applications by states parties to derogate from articles of treaties.38 Although treaty bodies play a useful role in reminding the international community of standards that need to be met if emergency measures are to be introduced, and although they call for time limits that would prevent the normalization of emergency, international law is in other respects a hindrance to tendentious declarations of emergency. This is because international law insists on the sovereignty of states, on the role of states as the vehicles for the expression of the right to national self-determination (ICCPR, Article 1), and also on the duties of states to protect their own populations. These statist and communitarian emphases are reinforced by judicial interpretations of human rights law that seem to give discretion to states in practice to be their own judges of the existence or nonexistence of a ‘threat to the organized life of a nation’, to allude to the description of emergency recognized by human rights law. Sober Hobbesianism, since it gives less weight to the self-determination of peoples than to the self-determination of people, and since it associates emergency with mass loss of life and injury as opposed to a vaguer condition of disorganized national life, is a valuable corrective 37 38

As Gross and Ni Aolian seem to claim in Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006), p. 315. The instruments for this oversight are not only treaty bodies: emergencies are also monitored informally by the international press and by NGOs, not to mention academics in the more liberal of international jurisdictions.

168

Legislating for emergencies and legislating in emergencies

to the thinking behind the human rights treaties. Equally valuable for clarifying what is meant by ‘emergency’ is its emphasis on threats to life and physical harm. Conditions that count as threats to life and physical harm are much easier to specify uncontroversially than conditions which threaten the ‘the organized life of a nation’. Yet it is these latter conditions that are referred to in human rights treaties, as we shall now see. Article 4, paragraph 1, of the International Covenant on Civil and Political Rights, says, 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

This wording is similar to that of Article 15, paragraph 1, of the earlier European Convention on Human Rights: In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

European jurisprudence has interpreted the phrase ‘public emergency threatening the nation’ as meaning ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed’.39 But it has accepted as meeting the standard for public emergencies conflicts that have not affected whole populations. Thus the former conflict in Northern Ireland was accepted by the European Court as a public emergency in the UK, and the conflict involving the Kurds in South-eastern Turkey has been acknowledged as a Turkish public emergency.40 Although both conflicts were militarized, both were relatively local, and so they justified judicial questioning 39

Lawless v. Ireland ECHR, 3, §28.

40

Askoy v. Turkey 23 Eur. HR Rep.

Normal vs. abnormal again: domestic and international law

169

of whether the threshold for emergency had been reached. What is more, the idea of a rupture or disorganization of national life seems to invite invocations of emergency in less than life-threatening situations by governments given to extreme nationalism or Schmittian communitarianism. The jurisprudence of the European Convention is not the only guide to the application of human rights law in emergencies. There is also the law associated with the ICCPR. Does it improve on the definition of emergency already encountered? The treaty body overseeing the ICCPR, the Human Rights Committee, drafted a General Comment (No. 29) on Article 4 a few months before 9/11 . It was not the first reconsideration of the provision for emergencies in ICCPR. The Siracusa Principles had come at Article 4 by way of a general interest in derogations and right-limitations.41 Other studies, such as the Questiaux Report,42 and other formulations of principles, such as the Paris Minimum Standards,43 had similarly considered ways of restricting states in declaring and time-limiting emergencies and in justifying derogations. Special Comment No. 29 reminds states parties of the very restricted interpretation of ‘emergency’ they may act upon, and the very narrow limits within which they can derogate from Articles not already specified as non-derogable by other paragraphs of Article 14. On the scope of the term ‘emergency’, the Special Comment says, 3. Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1. During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State’s emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances. On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights

41 42

For the details, see Gross and Ni Aolain, pp. 313ff. 43 Ibid. p. 306 for a discussion. Ibid. p. 310 for details.

170

Legislating for emergencies and legislating in emergencies

protected by the Covenant, or whose domestic law appears to allow such derogation in situations not covered by article 4.44

This interpretation takes armed conflict to be the case par excellence of emergency. It chimes in with the opening words of ECHR, Article 15: ‘In time of war or other public emergency threatening the life of the nation . . . ’, as if war were the paradigm case of public emergency. Now as opposed to what else might be included in a list of public emergencies, war is at least clearly associated with the sharp Hobbesian hallmarks of emergency: threat of death and serious injury on a large scale. There are no wars without lethal weapons directed against massed people. What is more, if a war is publicly directed against a national government and is being conducted over a large section of a territory within the internationally acknowledged borders of a single country, the connection between war and a disruption to national life is amply made out. Of course, if the instrument of war against a national government is a relatively small guerrilla army concentrated in a remote corner of a big state, then, notwithstanding the weapons that may be used, and the military tactics and military self-descriptions of those conducting it, the ‘war’ may have the character of a local disturbance. It may be closer in the spectrum of emergencies to the New York blackout than to the English or American civil wars. It may not be disruptive enough to disrupt national life, notwithstanding the aspirations of those conducting it to disrupt national life. In short, it may require local emergency measures, such as those seized by the Mayor of New York in 1977, but not a declaration of emergency by a state party to ICCPR. By contrast with the permissive understandings of ‘emergency’ evident in the European case law, the interpretation laid down by Special Comment 29 is restrictive but clear. It discourages tendentious declarations of emergency, since evidence of widespread armed conflict within a jurisdiction cannot easily be conjured up. Again, by emphasizing war, Special Comment 29 implies there is something wrong with armed conflict independent of its disorganizing effect: namely, its involving injury and loss of life. This makes the justification for taking strong action against emergency both morally and legally strong. 44

www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/ 71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.doc.

Normal vs. abnormal again: domestic and international law

171

There is a strong correspondence between what is clear and antipermissive in Special Comment 29 and a sober Hobbesian – even an unreconstructed Hobbesian – understanding of emergency. Special Comment 29 takes war as the paradigm case of emergency, and so does Hobbes. It states that the measures for dealing with emergency should be necessary. It assumes that there is a clear difference between war and peace, since in wartime threats to life and threats of injury are imminent and widespread, while in peacetime they are either absent or rare. Accordingly, a Hobbesian approach helps to define the legally necessary distinction between the emergency situation and the pre-emergency situation, helping in turn to define what a return to a pre-emergency situation might be like. For example, it could be expected to involve the surrender and destruction of weapons, the return to civilian law enforcement, relaxation of movement restrictions, etc. I mentioned two major problems with the human rights law surrounding emergency. One is its tendency to define emergency too permissively, which Special Comment 29 addresses; the other is its failure to engage with normalizations of emergency. Here again a Hobbesian framework may help. In unreconstructed Hobbesianism, the idea of a permanent emergency – understood as endless war internal to a state – is unintelligible. Either a war exists, or it does not. If it does, then the many are in mortal peril, in which case they do not get protection in return for submission, in which case their contract to submit is dissolved. Alternatively, there is no war, in which case no special measures are necessary, and no normalization of those measures can be in prospect. For there to be a long-running general emergency within a state – in the sense of a war affecting a whole population and a whole territory – is an impossibility in an unreconstructed Hobbesian framework, since long-running general emergencies are dissolutions of states or sufficient for failed states. Either that, or they are pre-political social formations – clumps of live, violent people rather than unions or bodies politic. Perhaps a Hobbesian state can contain generalized, low-level criminality – not enough to make many people fear for their lives, but enough to make a government seize special powers of arrest. But this would not come close to meeting the restrictive definition of emergency, and so would not justify general emergency powers. To the extent that an internal disturbance can be normalized, it cannot rise to the level of emergency, and to the

172

Legislating for emergencies and legislating in emergencies

extent that an internal disturbance is a real emergency, it cannot be normalized.45 It is important to distinguish between powers for a limited emergency (like the New York blackout or Hurricane Katrina, which are relatively confined geographically and limited in time), and powers for a general emergency like a war with many theatres in a unified territory. If powers for a general emergency are invoked by a government, that can be interpreted as a government response to the high risk of generalized violence or chaos. There are two cases. Either the violence or chaos is anticipated to be short-lived, in which case time-limited general powers are in order, or else the violence or chaos is anticipated to be long term, in which case what is being envisaged is state failure – or something close to it. The Hobbesian idea that ad hoc seizure of long-term emergency powers is prima facie evidence of failure or incapacity of the state is plausible on its face and properly reduces governments that are inept in arresting decline before it reaches crisis point to governments in name only. Of course, in many cases where emergency powers are invoked or extended, they are not always powers for a general emergency, and where limited emergency powers are made permanently available to a government, they may not be exercised much. Although there may be risks attached to the mere availability of powers that are not used, these are not uniformly big risks, because the powers are not uniformly big. Clearly the most unwanted normalization of emergency powers is normalization of powers of widest scope, powers suitable to war. These either fail the necessity test or are necessary and prompted by a situation which shows that a government has lost, or is on the verge of losing, de facto power. But the normalization of emergency in cases where the powers are limited or the exercise of them is rare is

45

Hobbes’s position is perhaps too clear-cut. There are deep issues in this area concerning the way that a state or people ‘survives’ an emergency without rupturing its political culture. These issues are central to Honig’s collection, Emergency Politics: Paradox, Law, Democracy (Princeton University Press, 2009). I am out of sympathy with Honig’s general response to these issues, because it is modelled on Williams’ response to questions about how ‘integrity’ is to be maintained in an individual’s response to moral conflicts (cf. pp. 4ff), and I think Williams’ formulations of those questions are deeply question-begging. See Chapter 3 and T. Sorell, Moral Theory and Anomaly (Oxford: Blackwell, 2000), ch. 2.

Normal vs. abnormal again: domestic and international law

173

another matter. These may be necessary or unnecessary without calling in question the continued existence of the state. If they are unnecessary, they are unjustified. But even if they are necessary, they may not justify the derogations that the paradigm emergency of Special Comment No. 29 – war – requires. They may deserve to be seen as powers called for by a sub-emergency, rather than a crisis in the Article 4 sense of ‘emergency’. When functioning governments unnecessarily invoke wide emergency powers, they wrongly invoke powers morally appropriate to countries at risk of becoming failed states. The concept of the failed state is essentially the concept of a state experiencing, and powerless to cope with, a very general emergency. But, to apply the Hobbesian point where it applies very well, a ‘failed state’ is no more a state than a dissolved state is a state. A state experiencing but powerless to cope with general emergency is similarly no state at all. The population that was once the citizenry of a state, if it is not displaced, loses any social contract that once held it together and is held together by, if anything, tribal or family ties, or at the limit, the land it continues to occupy if it is not driven out. The social contract dissolves if for no other reason than that the means of protecting the population from attack and displacement dissolves. A failed state cannot exercise any powers it declares it has, including emergency powers. Only a state relatively far from failure can seize emergency powers in practice, and the further it is from failure, the less justification it has for invoking the most sweeping of the emergency powers. On the other hand, the more robust the state, the more effective its exercise of any powers, and the weaker its claim to need the most sweeping powers. In other words, when we reflect in Hobbes’s way on the connection between state failure and all-out emergency, and the conditions under which powers for all-out emergency can justifiably be seized, we find that there is a very narrow area for justified exercise by a state of the widest emergency powers. The state must be on a trajectory toward failure but not so close to failure that it is impotent to arrest or stop further decline. Either that, or the state does not face ‘emergency’ in the Article 4 sense. In the case of limited emergency powers, powers which do not purport to head off the collapse of the state but only to curtail a period of departure from a customary and accepted normal public life, an even greater distance from state failure, is presupposed. But, by the same token, the claim of the measures

174

Legislating for emergencies and legislating in emergencies

to count as ‘emergency’ measures is weaker, as is their claim to be necessary or urgent. In connecting the purpose of the state with the prevention of major emergency, Hobbes’s theory makes available a concept – that of the failed state or of a state that is overcome by emergency – that is increasingly being invoked in global geopolitics. Although Hobbes’s concept of the failed state is essentially that of a state caught up in a civil war, it has something in common with the wider, more modern concept, which connects state failure with violent conflict as well as other things: e.g., corruption, failure to provide public services, displacement of people, and failure to have a presence in international trade and diplomacy.46 According to Hobbes, states are justified in exercising any powers that are necessary to prevent their becoming failed states, but, as we have also seen, powers necessary for preventing state failure often fall far short of sweeping emergency powers. It is sometimes because states have adopted the wrong everyday policies – wrong policies for taxation, for encouraging employment and trade, and for discouraging unsustainable consumption that they put themselves in the position of having to introduce martial law. The most drastic emergency powers seem necessary only when the decline of the state has been so mishandled that it has reached the point of no return. And the decline does not have to be driven by armed violence. It can descend to armed violence when armed violence is the response to the failure of policies quite outside the area of security: agricultural management, or heavy-handed slum clearance, or invitations to economic isolation – to name some failed policies that led to the failure or near failure of the state of Zimbabwe. In that case, the policies that were necessary to prevent the failure of the state had nothing to do with the police or army, but a lot to do with agricultural productivity, international diplomacy, and a more orderly system of transferring land ownership. Because the ad hoc seizure of emergency powers, even when justified, is always a sign of a weakened state from a Hobbesian perspective, and as weakness in a state interferes with a state’s ability to protect its population, Hobbes thinks that states have to have all the time and 46

See e.g. A. Ghani and C. Lockhart, Fixing Failed States: A Framework for a Fractured World (New York: Oxford University Press, 2008). See also Foreign Policy’s Failed State Index 2007: www.foreignpolicy.com/story/ cms.php?story id=3865&page=0.

Normal vs. abnormal again: domestic and international law

175

exercise regularly the powers characteristically acknowledged to be necessary only in a crisis. States that lack the powers or that allow their use to lapse hasten their dissolution. The very first item on Hobbes’s list of those things that weaken a commonwealth is want of absolute power: That a man to obtain a Kingdome, is sometimes content with lesse Power, than to the Peace, and defence of the Commonwealth is necessarily required. From whence it commeth to passe, that when the exercise of Power layd by, is for the publique safety to be resumed, it hath the resemblance of an unjust act; which disposeth great numbers of men (when occasion is presented) to rebel . . . 47

Hobbes seems to me to be right to claim that the sudden exercise of a disused power may look arbitrary to people who are accustomed to life without it. He also seems right to say that, if people respond violently to the appearance of arbitrariness, the state will be even weaker as a result. But it does not follow that the powers of government should normally be unlimited. It may follow instead that more should be done in normal times to make extraordinary powers look less arbitrary whenever they have to be invoked, and to make clear in normal times why and in what circumstances they would be necessary to invoke. This in turn may be a matter of having democratically enacted emergency legislation, of informing the public about emergency legislation in normal times, and of having mechanisms for early warning of risks that would trigger the application of this legislation. Sober Hobbesianism drops the commitment to absolute power while conceding the point that the ad hoc invocation of emergency powers is, when justified, an admission of weakness. Sober Hobbesianism is not permissive in its definition of emergency and it connects the normalization of emergency powers with reason for dissolving the social contract. Although it does not have a liberal abhorrence of the ad hoc seizure of emergency powers, and of ad hoc extensions to the periods when emergency powers are in force, it does have an abhorrence of these things all the same. 47

Leviathan, ch. 29, Tuck, ed. p. 222.

7

International security, human security and emergency

In this chapter, security in an international context is considered, and the sober Hobbesian approach is applied to two quite different kinds of emergency: brutal treatment abroad of a foreign population, perhaps justifying humanitarian intervention, and the current emerging climate-change emergency, in which domestic legislation may require a drastic change in behaviour from individuals for the sake of meeting international targets and averting great harm and loss of life globally. The Hobbesian approach to international security contrasts sharply with and is superior to a more up-to-date ‘human security’ approach. Or so I now try to show.

Thick and thin conceptions of security Unreconstructed Hobbesianism operates with a thin – in the sense of austere or basic – conception of security. Hobbes explicitly denies that, to be secure, people need to be protected from minor physical injury or slights from their fellows. Serious physical injury or incapacitation are what count (cf. Lev. ch. 27, Tuck, ed. p. 206). This keeps the threshold for legitimate resistance and disobedience high. But because the parties to the social contract give the sovereign great latitude to judge what kind of non-violent disagreements might lead to violence and threats to life, there is not necessarily a thin conception of a threat to security in unreconstructed Hobbes. It is true that threats to security must not include activity that actually creates the wealth and physical strength required for prosecuting defensive wars or domestic police action. But beyond that, threats to security are what a sovereign sincerely thinks they are. In particular, a sovereign’s judgements about who is ‘us’ and who is ‘them’ might influence or even dominate threats to security. Liberalism with Hobbesian sobriety operates differently. Its ‘us’/ ‘them’ distinction coincides with that between people who are subject 176

Thick and thin conceptions of security

177

to the same national legislation and those who are not. But the us/them distinction does not necessarily coincide with the friend/enemy distinction. People who are not subject to the same jurisdiction or who belong to a different people or civilization need not be threats to security. Nor are people who are subject to the same jurisdiction and who share our national identifications necessarily harmless. A Mafia gangster can be an American patriot, for example. In Hobbes and liberalism with Hobbesian sobriety alike, it is at least thinkable for a subject to do harm, indeed to do harm while trading on the willingness of other subjects not to do harm. Hobbes says one has to be a fool to act in this way, as if it were in one’s interest to do so. But it can seem to be in one’s interest, and that being so, co-contractors are not necessarily friends in a Hobbesian setup. By the same token, non-threatening foreign powers would not count as enemies, as they do in the unreconstructed Hobbes. These differences notwithstanding, liberalism with Hobbesian sobriety retains the thin conception of security of unreconstructed Hobbesianism. Threats to security are threats to life and limb, not blows to national self-esteem, or felt loss of personal prestige or the opportunity to pursue a life’s work. Again, it is not sufficient for a threat to life and limb that there be widespread fear of attack, or a widespread belief that a certain individual or group are enemies. There has to be properly weighed evidence of a threat or hostility. Governments have a role in detecting such evidence first, deciding what weight it has, and taking defensive measures accordingly. Governments also have a role in countering efforts at misinformation, scare-mongering or in fostering feelings of domestic and international enmity. In liberalism with Hobbesian sobriety, however, there is no presumption in favour of the concentration of judgement about security in one person or one government institution. These responsibilities can be divided across branches of government, especially in normal times. What is more, independent fact-gathering institutions – from universities to newspapers and campaigning groups – are also reasonably involved. But the public interest in sorting out real from bogus security threats is geared to a narrow or thin concept of security inherited from the unreconstructed Hobbes: security is freedom from the threat of physical violence. Liberalism with Hobbesian sobriety stands opposed to expansive conceptions of domestic and international security, some of which have come into vogue since the beginning of the twenty-first century.

178

International security, human security and emergency

According to these conceptions, poverty, discrimination, disease – in fact, violations of the whole range of human rights set out in the twin Human Rights Covenants of 1966 and the Universal Declaration of Human Rights – are at the same time security threats. Mary Robinson is speaking for this much thicker understanding of security when she writes, Our post-9/11 world is preoccupied with different experiences of insecurity. The atrocities in Darfur, Sudan and the millions living with, and orphaned by, HIV and AIDS in Sub-Saharan Africa, Asia and elsewhere, the long hardships suffered by indigenous peoples in the Americas, the humiliating poverty in slums and rural areas in the developing world – they all tell us a deplorable truth; that governments in different regions of the world are failing to provide even the rudiments of human security.1

She goes on to connect insecurity with preventable diseases, and, in the case of women, the ‘private oppressions of lack of property or inheritance rights, the lifelong deprivations that go with lack of schooling, and the structural problem of political exclusion’.2 It is clear that this last list of insecurities in Robinson’s sense would lie far outside the range of insecurities recognized by Hobbes or by liberalism with Hobbesian sobriety. Lacking property rights does not necessarily make one a target of violence, still less life-threatening violence. Nor is it necessarily physically harmful in some other way. It is of course plausible that these and other rights violations underlie some violent conflicts that would not have arisen had the relevant rights been respected. But then, contrary to Robinson, non-violent rights violations do not constitute insecurity: they cause it. Robinson is influenced by the concept of human security elaborated by Sen and Ogata in the Report of the Commission on Human Security in 2003.3 According to that Report, ‘human security means protecting fundamental freedoms – freedoms that are the essence of life’: The vital core of life is a set of elementary rights and freedoms people enjoy. What people consider to be ‘vital’ – what they consider to be ‘of the essence of life’ and ‘crucially important’ – varies across individuals and societies. 1 2 3

‘Human rights, development and security’ in R. Ashby Wilson, Human Rights in the ‘War on Terror’ (New York: Cambridge University Press, 2005), p. 310. Ibid. p. 311. (New York: Commission on Human Security, 2003).

Thick and thin conceptions of security

179

That is why any concept of human security must be dynamic. And that is why we refrain from proposing an itemized list of what makes up human security.4

This deeply liberal understanding of what is at the ‘vital core of life’ is both controversial and revisionary within a human rights framework. For one thing it reinterprets all violations of elementary rights as threats to life in some sense, because they are threats to the alleged ‘vital core of life’. For another, it insists on a culturally relative or society-relative idea of ‘what is of the essence of life’ or of ‘what is crucially important’. To take up the second point first, if what is ‘of the essence of life’ is the freedom to help the German people realize its will in the face of all other peoples’ wills, as Schmitt seems to have believed, we do not have a recipe for human rights protection or the protection of life in the ordinary sense that contrasts with death. Instead, we may have an invitation to war, and perhaps genocidal extermination of nonGermans. In other words, the no doubt well-intentioned revisionary conception of Sen and Ogata seems to permit human rights-threatening kinds of fundamentalism, while also encouraging Robinson’s implausible equation of security with the enjoyment of the whole range of human rights. It may also be open to appropriation by a would-be rights fundamentalism of a kind – a willingness to launch military action in the name of human rights or liberal values. A higher but easier to interpret threshold – of killing or serious injury – seems to be preferable. We can distinguish at least two kinds of thick notion of security. One kind – represented by Robinson, following Sen – is to the effect that security is the enjoyment of all human rights. Another kind endows security more narrowly conceived with a liberal purpose. Instead of being understood to neutralize or reduce threats to life and limb simpliciter, security is thought of as neutralizing threats to life and limb so that exercises of human rights – presumably organized by lifeplans – can be facilitated.5 Thickened in either way, thick notions of security seem to be deployed argumentatively for at least the following purposes: (a) to dispel the impression that liberty and security are conflicting values in 4 5

Ibid. p. 4. See Fernando Teson, ‘Liberal security’ in R. Ashby Wilson, Human Rights in the ‘War on Terror’ (New York: Cambridge University Press, 2005), pp. 57–77.

180

International security, human security and emergency

a jurisdiction faced with terrorism; (b) to internationalize the duty to protect, justifying interventions under international law to prevent or mitigate genocide and large-scale displacements of people in the course of civil wars; and (c) to bolster arguments from justice for international poverty relief and the support of development, where poverty is supposed to result not only from historical inequalities in international economic relations that require redress, but where poverty is a threat to life by being a threat to its ‘core’. I shall concentrate on (b), giving reasons why a thin notion of security is to be preferred to a thicker one. Not only do thicker notions of security seem to be open to conceptual criticism that the Hobbesian approach escapes (see the next section); they can also generate reasons for intervention that, if followed through militarily, deplete both money and good will needed domestically for fulfilling other rights that states have obligations to fulfil. A further problem with thick notions of human security, when they are opposed to statist conceptions, is that they focus attention on security threats from states against local populations, rather than security threats that emanate from citizens. An approach to security can be acceptable only if it accommodates both. A Hobbesian approach can accommodate both. More than that, it can make sense of security threats arising from the lawful and uncoerced behaviour of populations, behaviour that is sometimes internationally facilitated by the partisan behaviour of the relevant governments. The combined effects of such individual lifestyle choices as meat consumption, driving, intensive international air travel, and home heating and cooling, for example, are a widely recognized global security threat, for example, though they arise from the exercise of human rights and involve no violence or criminality. I come to this security threat later on.

Human security vs. state security A good place to begin is with the distinction between human security and state security in the Report of the Human Security Commission referred to earlier. The report complains that ‘security’ has too often been understood officially to mean the stability of national borders. ‘Threats to security’, accordingly, have largely been equated with threats of invasion or attack on one state by another. Threats to

Human security vs. state security

181

security in this sense exist, the Report admits, but they are not the only security threats that deserve international recognition. The point of the contrasting notion of ‘human security’ is to undo the state-centric bias of traditional notions of security, and thereby to widen the understanding of security so that it covers more of what it should. The widened concept applies to individuals. Not only can particular people suffer insecurity; their security can be threatened by the very states of which they are citizens. State-centric conceptions of security are not only too narrow, then, they tend to define away the dangers of being subject to state power. These dangers need not take the form of an oppressive police apparatus, though they can. Instead, they can materialize as a lack of services and resources for people, including resources for health and education. Lack of education may not seem to be a case of insecurity if security is narrowly defined as being protected from threats to life and limb. But, according to the Report, security is more than protection for people: it is empowerment, and education equips people with capacities that make them better able to look after themselves.6 Just as empowerment is a gain in security, according to the Report, so an important form of insecurity is . . . [d]eprivation; from extreme impoverishment, pollution, ill health, illiteracy and other maladies. Catastrophic accident and illness rank among the primary worries of the poor – and accurately, for their toll on human lives – causing more than 22 million preventable deaths in 2001. Educational deprivations are particularly serious for human security. Without education, men and especially women are disadvantaged as productive workers, as fathers and mothers, as citizens capable of social change. Without social protection, personal injury or economic collapse can catapult families into penury and desperation. All such losses affect people’s power to fend for themselves.7

Although it is possible to agree up to a point with this way of putting things, it is hard not to suspect that the concept of insecurity is being inflated to the dimensions of the concept of disadvantage itself. Admittedly, extreme poverty is sufficient for insecurity, as it can be lifethreatening, and whatever is life-threatening is at the same time enough for insecurity. That is why catastrophic accident and serious illness are rightly mentioned in the passage. It is less clear that illiteracy by itself 6

P. 4.

7

P. 6.

182

International security, human security and emergency

is enough for insecurity, since not every occupation depends on it, even in the developed world, and there has been a much longer history of mass illiteracy without gross insecurity in most of the world than mass literacy. Even today in the developed world, the functional illiteracy of some low-skilled workers and some craftsmen – some carpenters and bricklayers, for example – would not necessarily bar them from an average income or better, let alone increase their chances of illness or assault. Illiteracy is of course disadvantageous. It is disadvantageous even in places where it permits people to earn a reasonable income. Not everything that is a disadvantage, however, creates insecurity. For example, a stammer or a limp is a disadvantage, but it need not take away significantly, if at all, from physical or economic security. In the same way, relative poverty by the standards of the developed world would not rise to the appropriate threshold for internationally recognized insecurity, though extreme poverty might. Human security in Ogata’s and Sen’s sense connects security with empowerment, but does security-as-empowerment stretch the concept of security too far? Someone who builds up his physical strength is clearly in a better position to repel physical attack, and building up physical strength is clearly empowerment if anything is. Is all empowerment a security gain, however? For the concept of security to be engaged, there must be a risk of harm that empowerment counteracts. Someone who goes to a body-building class in a place where there is no aggression directed at him may empower himself, but it is hard to see this as a gain in security, since there is no threat to ward off in the first place. It may be a health gain or an aesthetic gain or a strength gain, pure and simple. There is again no necessary connection between becoming more able – gaining skills – and becoming more secure. An agent may of course increase the scope for self-reliance by building up his skills, but a gain in self-reliance is not always a gain in security. Learning to ride a bicycle in a big city is an example. Some gains in skills can even put one closer to big dangers, as in the case of learning how to mountain climb or how to go deep-sea diving or how to defuse a bomb. This line of thought has a bearing on the claim that the fulfilment of human rights is empowering and that liberties are empowering, and therefore a security gain. Whether human rights enhance security depends on the threats or risks, if any, that the rights are insurance against. If one lives in a jurisdiction where there is no tradition of

Human security vs. state security

183

intrusive official activity, and not much crime or aggression either, rights to property or free speech or free movement may have benefits, but not necessarily security benefits. They may make life go better, because, for example, of the commercial benefits of ownership or the enjoyment of taking holidays abroad whenever one feels like it, but they need not make life go better by making life safer. Similarly for liberties. These may aid people to get more of what they want, but not necessarily aid them to get more safety, and security above all has to do with safety. Differently, as in the exercise of rights of free speech when they verge on the expression of hate, human rights and security may be in tension with one another. When the Report connects security with empowerment, then, is it guilty of running together things that make life go better with things that make life safer or more secure? I think it is. The conflation is encouraged by concentrating on the link between underdevelopment and insecurity. The least-developed countries in the world combine the highest levels of poverty, disease, illiteracy, corruption, civil war, vulnerability to environmental damage, poor governance, indebtedness and displacement of populations. It is plausible to say that these countries are also among the least safe or secure. It is plausible to say that anything that make things go better in these countries also makes life safer or more secure in these countries. But it is not therefore plausible to say that, in general, what makes things go better makes things safer or more secure. Not all gains are gains in security. At most it is plausible to say that where things are at their worst in the world as we have it currently, what makes things better makes things safer. In the least-developed countries, what makes things go better tends to converge with what needs to be done because lives depend on it. Here, too, the notion of what is at the core of life is closely connected with survival and with minimum standards of autonomous activity. Above the level of the worst off, however – where what is vitally important starts to diverge from what is demanded by minimum international standards, it is less clear that lives depend on public or international provision of what is considered ‘vitally important’, especially where these ‘vitally important’ things feed a community’s sense of its own importance or pre-eminence. Now Hobbesian theories tend to work with a sense of ‘vitally important’ connected to the risk of significant physical injury or death. In unreconstructed Hobbesianism, what is vitally important is to reduce

184

International security, human security and emergency

the risk of avoidable death or injury, if possible by creating the conditions for benefiting from labour and for a harmless private life. Security is not only freedom from life-threatening conflict, but an opportunity to earn a living and keep wealth acquired from working. (It is rarely noticed that what makes war the worst of all calamities and the end of all good things, according to Hobbes, is that it puts an end to ‘Industry’ – by taking away the probability that anyone will be able to keep the fruits of his labour.)8 While acknowledging that there is more to security than freedom from attack, Hobbesian theories do not deny a distinction between state security and the security of individuals, and nor do they deny the connection between personal empowerment and security. Admittedly, they treat the distinction and the connection differently from the Report. Unreconstructed Hobbesianism distinguishes between state security and individual security by distinguishing between, e.g., a crime of personal assault and an act of rebellion or invasion. But it also limits the degree to which a state can be legitimately kept going at the expense of the lives of its citizens. As soon as life for individuals within the state is dangerous, the contract to submit among the many is weakened, or if the danger of living in the state is mortal, voided altogether. In this sense, personal security for the mass of the people and state security must march in step. To illustrate, when the Burmese government, on security grounds, prevented life-saving aid from entering Burma after the floods of 2008, it freed the hundreds of thousands of affected citizens of the obligation to obey its laws, according to unreconstructed Hobbesianism: this is because the state knowingly worsened the chances of survival of the many, contrary to the purpose of the hypothetical contract among the people for the protection of life. The Burmese junta put the maintenance of its own power ahead of the survival of its displaced, injured and hungry people. According to Hobbes, a sovereign acts wrongly – violates the seventeenth law of nature – by being Arbitrator in a case that engages his own interest.9 This is what went wrong in Burma: a 8

9

Leviathan, ch. 13: In such condition [of war], there is no place for Industry; because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force (my emphasis) . . . See e.g. Leviathan, ch. 13.

Human security vs. state security

185

humanitarian decision over whether to allow foreign help to alleviate local suffering was tainted by concerns over the effect on the junta of the presence of many humanitarian aid workers who might be in a position to testify to routine local oppression. Because Hobbes thinks it is both imprudent and wrong for sovereigns to decide public policy in their own favour, Hobbes gives value to the security of individuals. Unreconstructed Hobbesianism also acknowledges that sovereigns can overregulate and overtax their subjects out of a wish to protect public security,10 unintentionally impoverishing their subjects and depriving the public purse of the tax revenue that would pay for defence. Unreconstructed Hobbesianism even acknowledges that it is in the interest of everyone – the state and subjects – for everyone to work hard and consume modestly. In this sense personal empowerment – from gainful employment – is accommodated as an element of both personal and public security. Liberalism with Hobbesian sobriety is able to capture more of Sen and Ogata’s distinction between state security and human security than unreconstructed Hobbesianism. Sober Hobbesianism assumes that individuals are capable of impersonal judgement and also that this capacity is valuable. Impersonal judgement works to identify policies that either promote or do not damage security. So enhancement of this capacity is a gain in security. Since the central civil liberties are plausibly said to permit or encourage the development of this capacity, they, too, might be said to promote security. So might the elimination of deprivations in Sen’s and Ogata’s sense. Since the list of severe deprivations might be thought to interfere with life, and since the less severe deprivations might be thought to interfere with the development or exercise of the capacity for impersonal judgement in security matters, there is an argument from security and not just an argument from welfare for the elimination of those deprivations. On the other hand, as already stressed, impersonal judgement is detached judgement and works against fundamentalisms. Liberalism with Hobbesian sobriety tends to question judgements to the effect that certain forms of life are worse than death. For example, liberalism with Hobbesian sobriety is critical of the idea that death is better than lives built around religious or cultural identifications. This does not commit 10

See my ‘Hobbes on trade, consumption and the international order’, The Monist 89 (2006) 254f.

186

International security, human security and emergency

liberalism with Hobbesian sobriety to saying that these identifications, with their associated practices, are unimportant: only that they are not worth losing or taking life for. This is so even if, from an undetached point of view, people think they are ‘essential to life’. Freedom from the threat of attack and the opportunity to sustain a livelihood: these are what neo-Hobbesianism asserts as overriding values, partly because they are consistent with religion and culture and many other things that matter in life when they are not the object of a fundamentalist attachment. Can’t liberalism itself or democracy itself be made the object of fundamentalist attachments, so that wars are fought and lives are lost for the right kind of regime change? Isn’t this kind of fundamentalism at work in perceptions of an international order constituted in part by civilizational, as opposed to national, differences and antagonisms? The question came up earlier, in Chapter 4, and the answer depends on how much is packed into the definition of the relevant civilization. In Huntington’s hands, civilizations are amalgams of history in a place or places, religion, values and other things. But the motivational force of values is up to a point detachable from attachment to place, history, religion, and so on, which are so often the focus of fundamentalism. Liberalism and democracy, that is, are intelligible up to a point in the abstract, as are human rights. They can be understood as forms of politics partly expressible through principles. These principles can generate reasons for action for agents who are removed culturally from some of the most iconic manifestations of democracy or liberalism – the Houses of Parliament at Westminster, say, or the text on parchment of Magna Carta – and this helps the principles to have a reach beyond a country or even a civilization. In particular, the principles can become available internationally despite the antagonisms between countries thrown up by history, geography and religion. Even if the right way of understanding the principles is not as foundational reasons for action that make sense from the point of view of practical reason or a culture-transcending humanity; even if they are better understood as part of a minimal morality that is a latent in the historical forms of specific countries, the fact that they can be common reasons for action even for people who have never heard of Magna Carta means that their historical connection with the West does not make them impotent elsewhere or even among those who would feel distinctly out of place in America or Western Europe. Their

Foreign emergency: humanitarian intervention

187

generality, justifiability and applicability, as well as their accessibility as reasons for action means that they can cross civilizational lines otherwise made impassable by foreign languages, geographical distance and alien religions. So the appeal to them need not be partisan, and they can have other than Western sponsors. Although people can fight to the death for them, this need not be a fight against people from an alien civilization. It can be a fight against the violent, intolerant and repressive – with their nationalities disregarded. That said, the content of liberal and democratic principles tells against their implementation by force, let alone by killing, and so tells against the idea of a liberal fundamentalism. This is indeed a large part of Schmitt’s objection to them. The medium of contention in liberalism is not fighting but debate, and this medium is radically unsuited to the existential threats that supposedly face, and up to a point define, a people. What is more, the liberal norms of impartiality and neutrality operate not only against personal bias and favouritism but much more damagingly against partisanship. Similarly, the liberal value of tolerance supports pluralism against homogeneity and so undercuts rather than promotes the integrity of a people. In short, the characteristic values of liberalism tend to water down, if not undercut, the us/them distinction.

Foreign emergency: humanitarian intervention Although liberalism with Hobbesian sobriety captures some of the Sen-Ogata sense of ‘human security’, it does not capture it completely, for human security is not just the security of people as opposed to states: it is also a security that makes international claims by focusing on human vulnerability without reference to nationality. In Hobbes, the security of people is always a responsibility of a single commonwealth or none; it is not a responsibility of all commonwealths, still less of a super-commonwealth that spans the globe. How can a conception that leans so heavily toward statism deal with some of the more modern manifestations of people whose lives are put at risk by the oppression of governments or, differently, by the collapse of governments? Suppose that a section of a population is driven out of its customary homeland in an unprovoked act of aggression by the government that they previously submitted to. Granted that Hobbesianism gives them

188

International security, human security and emergency

the right of resistance in such a case, does it give any other authority – national or international – the right to support their resistance? Unreconstructed Hobbesianism is undeniably state-centric and it does not justify foreign interventions except where to omit such an intervention might invite conquest or civil war local to the intervening country. Since what a person bargains for by submission is protection mainly from local threats to life and limb, the apparatus that deters attacks must deter local attackers. The apparatus cannot do that if it is located too far away from the threat, or if it is spread so thin in order to deter invaders at its fringes that it cannot defend people in its heartland. So the demands of protection tend to restrict the protective apparatus within relatively narrow land borders. The more the apparatus has to operate far afield and on many fronts, the less likely it is to deliver protection and exact obedience in all the places it is supposed to. So many rather than few commonwealths are on the cards, each with coercive force sufficient to protect a local population. Against this background, the authority that according to unreconstructed Hobbesianism is responsible for protecting the many human beings who have been turned out by their former government is hard to identify and perhaps non-existent. It might be consistent with unreconstructed Hobbesianism for the many human beings to re-form themselves into a new commonwealth and for that commonwealth to fight the commonwealth that displaced its subjects. But there is no apparatus for justifying the internationalization of that fight. It is true that unreconstructed Hobbesianism permits alliances between sovereigns for security purposes, but it does not contemplate the globalization of security. And the Sen-Ogata concept of human security is supposed to mobilize international forces for combating internationally distributed insecurity. What about liberalism with Hobbesian sobriety? Can it get closer to Sen and Ogata than unreconstructed Hobbesianism? The answer is ‘Yes’, because of the operation of detached judgement. Under liberalism with Hobbesian sobriety, decision making is dispersed, but policy must be consistent with maintaining security in a fairly narrow sense, and those who are party to the decision making have to detach themselves from personal and short-term biasing considerations. It is arguably a short step from the detachment required by liberalism with Hobbesian sobriety for domestic decision making to the detachment required for the humanity of foreigners to be given weight. For after

Foreign emergency: humanitarian intervention

189

all, the concern with domestic security operates with a notion of harm or threat to life that applies to more people than co-nationals. The reason murder must be prevented in Japan is not just that it is bad for Japanese people to be murdered, but that it is bad to be murdered period. And the reason why forced expropriation must be prevented is, similarly, that it is bad to be deprived of one’s home, period, not just bad for Japanese people to be deprived of their homes. So if domestic resources are available for stopping forced expropriation abroad, and if the use of those resources poses no threats to life and limb domestically, liberalism with Hobbesian sobriety certainly makes intervention thinkable. Of course, it is hard for governments to be sure what the domestic security consequences of intervention will be, and this provides excuses, at times reasonable excuses, for non-intervention in the kind of case under consideration. But since mass displacements of people can themselves be long-term causes of insecurity far outside their countries of origin, there can be an argument from domestic security in the narrow sense for countries far away from the displacement to minimize its effects and prevent future displacements. There are therefore two sober Hobbesian routes to courses of action in keeping with a latterday human security agenda on intervention: through the capacity of detachment, and through the consequences for a given commonwealth of insecurity far away from it. Although liberalism with Hobbesian security permits one jurisdiction to engage in humanitarian intervention in another, it does so only if domestic security requires or permits, and so there is a sense in which the detachment required for neo-Hobbesianism never allows one to forget what country one is a citizen of or to treat fellow members of the commonwealth as merely human beings among others, facing severe hardships or dangers that other human beings in other places also face. The detached consciousness of Hobbesian subjects is a detached subject’s or citizen’s perspective, not a detached human perspective. This is where neo-Hobbesianism parts company with the spirit of human security. It is true that both unreconstructed Hobbesianism and neoHobbesianism permit and even require international co-operation, and there is no bar to international treaties that allow sovereigns to make military alliances or to facilitate trade. But there is no endorsement in Hobbes of a centrally co-ordinated oversight of international

190

International security, human security and emergency

security. It is unlikely that Hobbes would have endorsed an international legal regime, since he thought that law presupposes sovereignty, and no sovereign could give up sovereignty and continue to personify a commonwealth. The closest Hobbes could happily get to international law is an agreement of many sovereigns to depose an aggressive one of their fellows, or to resist jointly foreign aggression against one of them. Sober Hobbesians can justify the internationalization of security more directly if the internationalization of security is motivated by an interest in self-defence at the level of states, if the vehicle of self defence is an alliance of states, and if the authority for an international security force is drawn directly from each of the states rather than from suprastate institutions. Where such an arrangement exists, however, sober Hobbesianism is unlikely to acknowledge a duty to protect the severely oppressed wherever they may be. To be Hobbesian it cannot operate to compromise security in any of the participating states, and it operates through sovereign calls for assistance, not appeals for help from individuals or groups within the relevant states. Protection of individuals or groups is either part of an effective domestic settlement, or a responsibility of the persons under threat, who can justifiably throw off the inhibitions of submission and rebel violently. There is a pattern in Hobbesian approaches to the internationalization of security, and it can be captured by saying that the value of human life is primarily reflected in a universal right of self-defence on the part of individuals, rather than in a universal duty to protect on the part of the international community. A sovereign who turns against his people not only invites but justifies the dissolution of that commonwealth by those people. But the hardships those people suffer are not supposed to distract any other authorities from their domestic duties to protect: rather, they act as signals to all of those who suffer from the same life-threatening oppression that it may be safer to rebel than to suffer it any longer. So the Hobbesian approach tells against some of the conditions that justify humanitarian intervention from a human security perspective. But it characteristically looks to a domestic rather than an international response to those conditions. An international response is permitted in neo-Hobbesianism, because of its device of impersonal judgement, but it is not a duty unless domestic security requires it.

International emergency: the case of climate change

191

Is the sober Hobbesian approach manifestly inferior to the human security approach? Since it does not exalt state security, making it only a vehicle for the security of individuals, it meets one of the SenOgata desiderata. Since it also allows the badness of certain hardships to register regardless of the affiliations of those who suffer them and where they live, it has even more in common with the human security approach. Because it is sensitive to national jurisdiction rather than to religion, race, or nation in its reckoning of who deserves domestic protection, and since subjects in a jurisdiction could potentially include those who do not start out with subject status, e.g., through peaceful immigration, it may not make borders obstacles to receiving protection. In short, it is unparochial without being entirely cosmopolitan. On the other hand, its internationalization of security is indirect, contingent, and limited. It is indirect in that it justifies the internationalization of security partly as a means of promoting domestic security, contingent in that reasons for an international security intervention can be overridden, and limited in that it does not support trans-national oversight of security except where it does not unsettle smaller-scale domestic arrangements. These aspects accommodate some of the same practice as is recommended by the human security agenda. For instance, there is no bar in liberalism with Hobbesian sobriety to supporting the deepening of democracy domestically11 and abroad, through diplomacy, or to participation in preventive peacekeeping forces after conflicts.12

International emergency: the case of climate change Liberalism with Hobbesian sobriety does not side with states against individuals whose security is threatened by states. It licenses selfdefence, in particular, rebellion in self-defence against life-threatening government. It can even require intervention, where the violent repression or expulsion of one population by one government compromises the defence by another government of its population. On the other hand, the default position of sober Hobbesianism is statist as opposed to regionalist or cosmopolitan, and it does not equate security with the 11 12

See A Sen and S Ogata, Final Report of the Human Security Commission, p. 133. www.unocha.org/humansecurity/chs/finalreport/index.html. Ibid. p. 131.

192

International security, human security and emergency

full range of human rights protections. Instead, security in the sense of protection from threats to life and limb is something that people have a fundamental right to, and the exercise of other rights can sometimes be limited or overridden by the need to fulfil this right. Liberalism with Hobbesian sobriety thus recognizes the potential conflict between the right to security and other rights. This is not its only departure from the human security approach. As emerged in Chapter 3, liberalism with Hobbesian sobriety is also perfectionist and anti-relativist. It implies that some pursuits in life are objectively morally valuable or objectively morally repugnant, and that one of the roles of government is to promote, without forcing people into, moral pursuits. It is for governments not only to get out of the way of citizens, once their security and other fundamental rights are secured, but to create conditions for the pursuit of a more moral life (M of F, pp. 412ff), if necessary by coercing people to pay the taxes necessary to fund the opportunities, or to omit actions that would interfere with the creation or adoption of those opportunities. Perfectionism in this sense depends on rejecting Sen-Ogata relativism about ‘what is vitally important’. More bluntly, in the form in which it is adapted from Raz, it is compatible with a range of unapologetically paternalist policies (M of F, p. 422f). In liberalism with Hobbesian sobriety governments do not make people do what is good for them (as in Hobbes); instead, they unsubtly legislate and provide economic incentives for choices with the same effect. An important international security problem that tells in favour of this approach is climate change. Climate change is a distinctive international emergency.13 First, it seems to require some sort of immediate and co-ordinated action if its worst, but not necessarily imminent, effects are to be avoided. Second, this action seems not to be within the power of existing institutions or to be in line with the wishes of many of the relevant agents. Again, climate change appears to be the cumulative result of (almost invariably lawful) actions over time by individuals and organizations, actions that did not seem at the time they were performed to be harmful. Further, the individuals and organizations whose actions have had the biggest effects, though 13

For a range of materials that together make a convincing case for this being an emergency, see www.climate-change-emergency-medical-response.org/whyclimate-change-is-an-emergency.html.

International emergency: the case of climate change

193

concentrated in the developed world, are not confined to the developed world. The effects of their actions have been slow to become visible and widely acknowledged to be the consequence of human behaviour. To make things worse, it is unclear how much time is left to mitigate these effects, which appear to be growing more severe more quickly as time goes on. Besides, although means of reducing emissions are available, adopting them where it would make the most difference would probably be resoundingly democratically rejected. Finally, it seems to be important to making a big enough difference to climate change that supranational and indeed universal agreement be reached to implement far-reaching measures. Reaching agreement has proved very difficult. Even if a good treaty could be signed by all the relevant parties, implementation would have to be universal and conscientious in turn. These dimensions of the problem unsuit it to inclusion in something as small-scale as a national emergency plan or an estimate of risks to a single nation. In 2009, the World Health Organization issued ‘Protecting Health from Climate Change’.14 This is a summary of the health implications of recent climate change for both developed and undeveloped countries, and a set of recommendations for action. Its main theme is that the ill effects of climate change are likely to affect most those who are already highly disadvantaged. The poorest and least educated living in countries with the least protective infrastructures are most likely to suffer the most from flooding and drought, the increase in vectorborne diseases (such as malaria), and worsening shortages of clean water associated from global warming. The recommended responses range from changing domestic energy sources in developing countries and increasing insulation in developed ones, to reducing population growth, massive investment in non-carbon-based methods of electricity generation, sustainable transportation systems and a move away from meat in global food production.15 In relation to health, WHO advocates well-tested public health and health service interventions, such as public education, disease surveillance, disaster preparedness, vector control, food hygiene and inspection, nutritional supplementation, vaccines, primary and

14 15

http://whqlibdoc.who.int/publications/2009/9789241598880 eng.pdf. ‘Protecting Health from Climate Change’, p. 27.

194

International security, human security and emergency

mental health care, and training. Where these capacities are weak, collaborative work must be done to enhance them.16

Many of these measures are expensive and require public spending at a time when even developed countries’ economies are weak and many developed country governments are highly indebted. What is more, many of these measures involve lifestyle changes that are not likely to be embraced readily by those who need to make them. Eating less meat or using public transportation instead of the car are two examples of responses to climate change that are likely to be refused or at best made reluctantly by individuals in some developed countries. Not only will some be unwilling to make their way of life worse; some will not easily enter into the synoptic global view in which the scale of the effects and their severity for the already worst off are readily seen. They will not always be used to thinking about the worse off, let alone the worst off in the rest of the world. In these circumstances, emergency response does not take the form of bouncing back from an unexpected and unwelcome worsening of one’s circumstances: it takes the form of a voluntary worsening of one’s circumstances for the sake of helping others who are worse off still, or perhaps for the sake of helping the co-existing worse off and the not-yet-born descendants of the currently well off. Even if having to travel by bus is not all that bad, and even if it is good for one’s health to reduce meat consumption, even if it is much better for some people to pay more tax than for others to start to be or be displaced by the extreme weather brought on by global warming, it is pointless to deny that the response to climate change will cost people in developed countries quite a lot. Nor will these costs be a short-term payment for a long-term return to the way of life they are giving up. Rather, it will be the beginning of a permanent departure from the way of life that may end up by taking people very far from it. It summarizes the trajectory to say that people will both soon and in the future have to move from individualized, unrestrained consumption in a non-judgemental environment, to more restrained, more constrained consumption in which law, tax and public attitudes discourage carbon-intensive energy sources. Perhaps new ‘social forms’ in Raz’s sense will need to be developed around 16

Ibid. p. 29.

International emergency: the case of climate change

195

consumption.17 Not just customs of recycling and of designing more energy-efficient technology but of wanting and buying less may need to be adopted. Since the evolution of these social forms will almost certainly take more than the time available before climate change reaches a tipping point, not only paternalist but maybe even coercive measures will have to be contemplated. If climate change is occurring as rapidly as some of the campaigning groups suggest, and if its effects abroad are large-scale flooding, loss of agricultural capacity, and enormous displacement of people from low-lying areas that also suffer from chronic poverty, then for the sake of domestic security, including food security, in developing and developed countries, some compulsory carbon-reducing measures may have to be introduced not only for the sake of humanity but for the good of people domestically. What is more, the trajectory cannot be a gradual path downwards but needs to start with some sharp disruption to patterns of car use, home heating, eating, and public investment and taxation in the developed countries. What is even more, the end point of the process that needs to start with a bang will not be a return to a high-consuming normal but probably to a world in which increasingly bad weather events and their economic and social by-products will merely be less bad than they would have been had things not started with a bang.18 Liberalism with Hobbesian sobriety readily accommodates the need for an extremely active government role in changing for the public good kinds of behaviour that people would probably not otherwise change. Its perfectionism with paternalism may not be so different in effect from what unreconstructed Hobbesianism requires. As we shall now see, unreconstructed Hobbesianism envisages mechanisms of taxation and trade regulation that discourage or prohibit profligate consumption. If Hobbes’s prescriptions are followed, profligate consumption never starts, and the security implications of dependence on imports, including imports of oil, register from the start with a sovereign. The key to Hobbes as theorist of sustainability is the prerogative of the sovereign to keep the prosperity of citizens within modest limits. 17 18

Or around investment. In early 2013 the Seattle City Employees’ Retirement System pension fund decided to disinvest in oil shares. See C. McKinnon, ‘Runaway climate-change: a justice-based case for precautions’ Journal of Social Philosophy 40 (2009) 187–209.

196

International security, human security and emergency

One of the by-products for individuals of submission to the sovereign in Hobbes’s commonwealth is an impersonal measure of what counts as enough. Citizens are normally entitled to what results from their productive work, minus what they are taxed for consumption and what they are taxed for the peace-keeping apparatus of the state. What is left over is enough, according to Hobbes’s stripped down conception of the commodious life, so long as it is at minimum enough to survive. It is enough even if it co-exists with strong unsatisfied desires in particular individuals. The frame of reference for sufficiency and consumption is not only a single state. According to Hobbes, burgeoning demand in one country for a commodity that only other countries can supply is a possible cause of a war with other countries to take over supplies of that commodity. If the commodity in question is necessary for human survival, such as water, that is one thing, but if it is a requirement of a wholly extravagant lifestyle, then, according to Hobbes, what is needed is not more of the commodity but less of the lifestyle. Vain expense is a distinctive cause of the dissolution of commonwealths, comparable to consumption in human beings (Lev. ch. 29, Tuck, ed. p. 230). The concentration of wealth in a few monopolists is similarly disabling (Lev. ch. 29, Tuck, ed. p. 229). The wealth that proceeds from one’s own industry is what life in the commonwealth is supposed to protect (On the Citizen, ch. 13, §6), not a luxurious existence. This much is implied by De cive’s list of the components of commodious living: Regarding this life only, the good things citizens may enjoy can be put into four categories: (1) defence from external enemies; (2) preservation of internal peace; (3) acquisition of wealth, so far as this is consistent with public security; (4) enjoyment of innocent liberty. Sovereigns can do no more for the citizens’ happiness than to enable them to enjoy the possessions their industry has won them, safe from foreign and civil war. (De cive, ch. 13, § 6, Tuck and Silverthorne edition, p. 144)

The acquisition of wealth full stop is not mentioned; it is the acquisition of wealth, ‘so far as this is consistent with public security’. This way of putting it allows for significant redistribution within a state, and Hobbes’s overall theory probably implies that the redistribution should result in levels of wealth that finance only limited consumption. Once a sovereign power is established, there are conditions not only for moderate consumption of locally produced goods but also for

International emergency: the case of climate change

197

authorized buying and selling of foreign goods. Hobbes’s personal knowledge of companies formed to conduct trade between England and its North American colonies in the seventeenth century is reflected in Chapter 22 of Leviathan, where he reflects on the dangers of monopoly buying and selling rights exercised by some companies of merchant adventurers. With the power to keep cost prices for foreignbought commodities low and selling prices for the same goods in England high, companies of merchant adventurers were in a position to disadvantage people abroad as well as their fellow citizens (Lev. ch. 22, Tuck, ed. pp. 160–161). But these disadvantages are, so to speak, the other side of the coin of new channels of supply these monopolists open up, thanks to the existence of stable government. It is private wealth, freely invested, that brings in the imports, and this can be accumulated well only outside the state of nature. Although private enterprise is important for domestic prosperity, trade channels can let in harmful as well as beneficial goods. Accordingly, the sovereign’s hand ought to be far from invisible even in the dealings of merchant adventurers. As already said, Hobbes thinks it is for the sovereign to judge what imports are safe, and to beware the wealth of monopolists. The concept of safe import (cf. Lev. ch. 24, Tuck, ed. p. 173) probably excludes unregulated trade in weapons in its most central application, but it is suggestive and probably can be taken much further. At one extreme it could tell against revolutionary literature or pamphlets, and at another, against the import of commodities for which the domestic appetite might become excessive, like oil or drugs. Again, unsafe imports might include imports of practically anything that involves climate change–aggravating deforestation or the runaway construction of carbon-producing energy to sustain manufacturing, as in a latter-day China gearing up to produce more and more for the West. Not all environmental emergencies have so deeply set a global dimension as climate change. Oil spills and other forms of contamination do not, or do not have it necessarily. Again, not all environmental emergencies seem to require such large scale changes of lifestyle if they are to be prevented or contained. Although the indirect effects of climate change can in the future include food shortages, mass migrations and significant internal displacements of people away from low-lying land; although, in short, climate change is a clear security threat and not just a threat to lavish ways of living, its severity is not always taken

198

International security, human security and emergency

seriously by governments or individuals who have to do something about it. One reason is that climate change is a challenge to the powers of detachment of citizens, especially citizens of the rich democratic countries. Especially where a profligate lifestyle not previously recognized as profligate has to be given up after having been permitted or even encouraged – by both markets and governments – people can feel aggrieved. Not only the big oil and coal producers but their customers can clutch at gaps in the evidence for serious climate change so as to postpone action. Because of the global co-ordination it requires and its urgency, acting to slow down climate change may seem to require no less than Hobbes’ artificial man at the global level, i.e., a world state whose sovereign is as much in command of its body politic as a normally functioning brain is in command of its limbs. We have already seen that the Hobbesian setup is inimical to a global commonwealth. To begin with the unreconstructed Hobbes, there is a marked hostility in Leviathan in particular (Lev. ch. 29, p. 230) to the problems of maintaining conquest through large-scale imperial government. The sovereign attention and military force are always in danger of being spread too thin, and the need to delegate administration to faraway administrators and governors itself prepares the ground for competing centres of power, challenges to sovereignty and a weakening of the metropolitan homeland. There is a clear parallel between the overextended empire and a unitary global or even regional government. In liberalism with Hobbesian sobriety, too, politics is state-centred, and citizenship is a condition of being included in the distribution of goods above the threshold of extreme need. Neither the statecentredness of the theory, however, nor the priority it gives to threats to life and limb makes it unsuitable to tackle climate change. In particular, liberalism with Hobbesian sobriety is well adapted to the conflicting interests of, on the one hand, citizens of very-low-income countries, and on the other, citizens of the rich countries, in the just global distribution of emission rights, and other kinds of burden sharing. For example, because of the great vulnerability of low-lying countries to rising sea-levels being caused by climate change, the governments of low-lying countries are obliged to be uncompromising in their insistence on the fastest possible reduction in the rate of increase of emissions of green-house emissions: the lives and livelihoods of citizens depend on it. For the same reason, citizens of low-lying countries in

International emergency: the case of climate change

199

the future will owe no clear duty of obedience to governments that were prepared to compromise on the rate of reduction. For the same reason again, citizens of those countries at a time when massive flooding was imminent would be climate-change refugees out of necessity and would be entitled to move to the nearest higher land or to an agreed resettlement area, if the costs of reaching it were not too high. But if the indirect consequences of this displacement of people were a life-threatening shortage of food or other unrest in the area of resettlement, e.g, in the Asian sub-continent, then, according to the Hobbesian approach, a whole chain of security-threatening turns of events could produce a blameless destabilization of regions of the world not themselves directly exposed to the dangers facing low-lying areas from climate change. In these conditions there could easily be a vital regional interest in a climate-change settlement. A parallel argument could be constructed for very-low-income countries whose land area might be safe from the immediate effects of climate change but whose trade or agriculture were indirectly exposed. As has already been noted, for citizens of countries living at the best of times close to bare subsistence, sudden downturns are hard not to classify as security threats. Although disadvantage is not the same as insecurity, fresh disadvantage among the worst off is often sufficient for life-threatening insecurity. So, there are local security reasons in some states and regions highly exposed to the effects of climate change to join forces politically in climate change negotiations, and also, in self-defence, to turn back refugees. And individuals in those states can reasonably think of migration, even illegal migration, as a life-saving measure. It is possible that these regional common interests, and the many unpredictable security effects of justified and voluntary displacements of desperate people, add up also to a future threat to the security of high-income countries. This is most clearly possible where high-income countries adjoin low-income countries affected by climate change, and also where there is a market in illegal immigration, and criminal gangs in high-income countries are willing to traffic in some of the people who are displaced. Such markets and such trafficking already exist at the border between the US and Mexico, at the sea frontiers between southwestern Europe and North Africa, and between some of the Southeast Asian neighbours of Australia and New Zealand. Liberalism with Hobbesian sobriety allows this multiplication of security

200

International security, human security and emergency

threats to register in the need for security-inspired international agreements to mitigate the effects of climate change. At the same time, the combination of unreconstructed and sober Hobbesianism allows profligate consumer consumption to register as a security threat when it depends on and encourages increases in already dangerous quantities of carbon-based emissions. The danger will not be, as perhaps it is conceived in the unreconstructed Hobbes to be, individuals overspending on themselves savings that are needed by the sovereign for policing and defence. The danger will not be a citizenry so bloated and drunk that it is incapable of forming an effective army or navy: instead, it will be the simple refusal both of the general population and of carbon-based energy producers to agree to give up much for a more sustainable way of life. Although there are excellent arguments to the conclusion that it is unjust for citizens of high-income countries not to agree immediately to a moratorium on burning oil and coal, or at least to carbonsequestration measures and the incentivization of renewable energy sources,19 these arguments almost invariably depend on facts sufficient to show that it is dangerous not to take these measures. What is more, the climate change that these measures would slow down is speeding up. This means that climate change is not only dangerous in the longer term but in the short term, when a tipping point is likely to be encountered. The more imminent the tipping point, the more that emergency measures become appropriate even in a liberal democratic context. Or, in other words, it may be the transition from a justice-based to a security-based argument that will actually engage the kind of powers – emergency powers – that are necessary if climate change is to be tackled effectively. Perhaps the emergency measures will take the form of a massive nuclear reactor-building programme in the most developed countries, or mass transit construction combined with sanctions on inessential private car use. Perhaps the measures would be less drastic, but nevertheless compulsory, adaptations of existing carbon-based industry to carbon capture. Perhaps other measures would be more effective: liberalism with Hobbesian 19

See Henry Shue, ‘Deadly delays, saving opportunities: creating a more dangerous world’ in S. Gardiner, S. Caney, D. Jamieson and H. Shue, eds. Climate Ethics (Oxford University Press, 2010), pp. 146–178. See also, in the same volume, Shue’s ‘Subsistence emissions and luxury emissions’, pp. 200–214.

International emergency: the case of climate change

201

sobriety supports evidenced-based implementation of emergency powers worked out in normal times. But it also opposes inaction when an emergency exists and effective emergency powers can be unleashed to meet it. In the case of global climate change, it is not necessary to be a Hobbes or a Schmitt to conclude that discussion has gotten the better of decision for too long. Environmental emergency is distinctive in more than its scale and in the immoveability of some of the human self-indulgence it requires the authorities or ourselves to undo. It also challenges the presiding norm of emergency planning – the norm of returning to normal. An emergency is not always at the best of times an occasion for trying to keep a detour from a way of life as short as possible. Sometimes it is an occasion for reconsidering a way of life and changing it radically. Hobbes was right to insist that modest ways of life on the part of individuals lengthen the periods between emergencies. But this may be a lesson that climate change will make us relearn the hard way.

Conclusion

The ethics and politics of emergency are in some sense ordinary ethics and politics, and in some sense extraordinary ethics and politics. Emergency ethics, I have argued, is primarily the ethics of saving life and preventing or minimizing serious injury. Ordinary morality recognizes danger to life, in particular imminent danger to life, not only as a reason for action but also as an overriding reason for action, and a reason for action that is urgent to address. The risk of serious harm or injury is a related reason for action. This, too, can be overriding, even when the harm or injury is not, or is unlikely to be, fatal. In normal times in developed countries, individuals are usually spared the need personally to save lives and respond to serious injury. For a country to be developed just is, among other things, for background conditions to be friendly to survival and prosperity and for the demands of rescue to arise abnormally and to be allocated to specialized institutions. A division of labour and a culture of addressing serious risks to life and limb prospectively insulate individuals from the burdens of emergency response. Emergencies – especially in the familiar forms of fire, flood, and civil disturbances – are, in the terminology of this book, ‘domesticated’ in developed countries. Or at least they are so far. Do reasons for domesticating emergencies extend beyond reasons for saving life and preventing injury? It has sometimes been thought that, if emergencies are not prevented or not contained once they have broken out, a kind of nihilism-inducing cloud can descend upon the people caught up in them. To people who think that they are on the point of death it can seem not only as if they can do anything to save their lives but also that anything at all is permitted full stop in the short period of life that is still left to them. On this view, emergencies create a sort of moral black hole in which the appearance that anything is permitted suddenly takes hold of people. I have argued that the black

202

Conclusion

203

hole is more likely to be illusory in the case of emergencies facing individuals – private emergencies – than in public emergencies, and that there is reason to be sceptical about the reality of black holes even where emergencies overwhelm whole populations. So, according to me, the ethics of emergency has relatively little to do with the prevention of an atmosphere of nihilism or extreme permissiveness, and almost everything to do with preventing loss of life and serious injury. It may seem as if this argument befits a nanny state or a health and safety culture that has got out of hand. Is there no place in human life for the cultivation of personal skills that make people equal to big risks, that is, that enable them to face danger, including mortal danger? Yes. As early as Chapter 1, I pointed out that some dangerous pursuits that otherwise look like emergencies waiting to happen are in fact the implementation of skills that make people more able in the face of danger and that reduce the thresholds for reasonable fear. A domestication of emergency that put an end to all mountain climbing, all endurance competitions and some extreme recreations which depend on skill would be an over-reaction to emergency, according to the account developed here, and might take away from the institutional capacity for emergency response itself. Although the ethics of emergency is foreshadowed in the overridingness of reasons for saving lives and preventing serious injury recognized by ordinary morality, emergency ethics is not always ordinary or normal ethics, and both theoretical and practical mistakes arise from exaggerating its continuity with areas of morality that are more routine. By ‘routine areas’ I mean areas where life and serious injury are not at stake, or where life and injury are at stake, but resources for dealing with them, both material and institutional, are ample. A hospital or an ambulance are settings for domesticated emergencies (at least in developed countries) in normal times, but a health care system – even the best health care system in the world – facing pandemic infectious disease can both worsen and be decimated by what it is up against. An ethics for this situation cannot possibly be continuous with an ethics for routine life and death decisions. This is because many more lives are at risk, because wider social and economic disruption can be very great, and because some interventions can make things much worse for both interveners and patients. Emergency ethics in this setting is more impersonal, more consequentialist, and less consultative and less

204

Conclusion

consensual than the ethics of the emergency room in normal times. To fail to recognize this is to confuse the ethics of domesticated emergency with the ethics of emergency in general. This point applies to climate change as much as to pandemic. In what sense does the normative theory of emergency require a politics? In Chapter 1 I argued that politics is required (a) to reduce harm to populations, (b) to counteract the multiplication of private emergencies beyond the capacities of individuals to cope, and (c) to reduce the scope for individual rescuers to be called upon to play God. The need for emergency politics does not end there. Some emergencies, such as civil wars or acts of military aggression between states, are underdescribed as threats to life, and have dimensions that an ethics of life-saving and harm prevention clearly leave out. Civil wars can call in question the legitimacy of a government, and military attack can be a threat not only to lives but to a way of life and to institutions in which a whole population values. More exotically, there is the connection postulated by Hobbes between politics itself and emergency. For people to live in groups with no over-awing power to control them is itself an emergency waiting to happen, total war in fact, according to Hobbes. Domestic politics, the erection of absolute government by a population in a defined territory, is in his view the answer to the local war of all against all. I have argued that the politics of emergency should not be the wideranging authorized dictatorship endorsed by Hobbes, but rather liberal politics of a particular kind, with accretions of Hobbes. Adapting the liberalism of Raz, I have argued that respect for security institutions is in keeping with reasons people have for choosing and pursuing lifeorganizing goals. People have rights to security against everyone else they live and interact with, but contrary to Hobbes, their interest in security is not the organizing value of ethics or politics. People have rights other than the right to security, but the right to security and the right to life generate reasons for action that are overriding. On the other hand, and here Raz is constrained by Hobbes, rights to life and to security are not rights to pursue securely goals that one would rather kill or die for than give up. Rights to life are not rights to the perfectly unencumbered pursuit of life-defining aims or projects. I take from Hobbes a divorce of security from non-negotiable conceptions of what life is for or what individual lives are for. Unwillingness to be swayed

Conclusion

205

by the non-negotiable I associated with the anti-fundamentalist strand in Hobbes. This is what is used to make Razian liberalism, which otherwise tends to get carried away with life-making and life-defining goals, sober. Sober Hobbesianism is not just the antidote to the fundamentalism of individuals whose projects are supposed to make them who they are; it is also the antidote to the fundamentalism of leaders of people who are single-minded about realizing the mythic possibilities of the historically situated people they represent. This is the fundamentalism endorsed by Schmitt and up to a point Huntington, and it was heavily criticized in Chapter 4. Hobbesian sobriety also tells against a theory of supreme emergency – Walzer’s – according to which the loss of a certain kind of community ongoingness in addition to life is the height of disaster. Not only the fundamentalism of individuals but the fundamentalism of governments in defence of their people’s destinies or their community’s recognizability to themselves for all time needs sober reconsideration – reconsideration from the point of view of a liberalism with Hobbesian sobriety. Hobbesian sobriety is not only an antidote to theoretical tolerance of fundamentalisms and killing and war on their behalf; it is also the antidote to reconceptualizations of security and security policies that self-defeatingly increase civic hostility to governments while making no one safer. Focusing on among other things international counterterrorism as a would-be emergency response, I argued that many measures criticized on liberal grounds are in fact more effectively criticized in the light of Hobbes’s test for whether a security-promoting law is ‘necessary’. Focusing elsewhere on attempts both in the policy world and in the academic literature to inflate the concept of insecurity to that of disadvantage, I argued for Hobbesian sobriety and a ‘thin’ conception of insecurity (and security) also in those connections. I then tried to show that Hobbesian sobriety with its thin conception lent itself to the two different kinds of emergency that present themselves in international affairs today: environmental emergency and attacks by states on their own citizens. Sober Hobbesianism is unparochial without being cosmopolitan: it can recognize the importance, other things being equal, of responses to threats to life wherever they are. But it stops short of licensing intervention which itself creates domestic security threats. On the other hand, it has resources for dealing

206

Conclusion

with the slow-burning global emergencies partly created by the lawful but sometimes highly self-indulgent activities of the citizens of relatively few countries. Here sober Hobbesianism has to reach back to its roots and revive the appreciation of modest well-being. The benefits of living together in peace do not include each having everything he wants.

Index

aboriginal life, 33, 35–36 absolute power, 175 absolutism of rights, 126 act-consequentialism, 16 Al Qaeda, 104–109 Algeria, 135–136, 165 appetite, 49–50, 51, 53, 62, 71–72, 74, 76, 141, 149, 163 Asian values, 119 authorized dictatorship, 26, 28–33, 139, 141, 204 autonomy, 74–75 emergency response and, 134–139 social forms and, 67–70 avoidable calamities, 30, 45, 145–146 avoidable emergencies, 14, 17, 53, 184. See also emergencies battery (crime), 63–64 Bin Laden, Osama, 105 black holes, 8–9, 22–28 absence of local authority and, 24 emergencies and, 202 state of nature and, 25–28 unexpected emergencies and, 8–9 Blair, Tony, 112 Book of Revelations, 114 Breivik, Anders, 82–83 British Asians, 130–131, 133 Burke, Edmund, 126–127 Burma, 184–185 Bush, George W., 104–107, 112 cannibalism, 10, 12, 14 Catholicism, 111 character traits, 75, 80 charity, 90–91 charm offensive, 148 China, 110, 112, 113, 115, 160, 197 Chinese civilization, 111

Christianity, 111, 114 Churchill, Winston, 124–125 citizens, sovereign as sole judge, 62 citizenship, 99, 123–124, 131, 147, 198 civic duties, 37 civil disturbance, 162 civil rights, 51, 67, 88–89, 140 civil science, 150 civil wars, 22, 24, 26, 30, 32, 33, 35, 40, 44, 124, 170, 174, 180, 183, 188, 204 civilizations, 110–116, 186 climate change, 192–201 cold war, 33–35 collision with space debris, 8, 13 commodious living, components of, 196 commodity, demand for, 196 commonwealth, 35 break-up of, 32 civic duties and, 37 purpose of, xiii state of nature, 35 communitarianism, 59, 74, 131, 137 communities emergencies and, 124–129 fundamentalism and, xiv national, 122–124 unassimilated minorities in, 129–134 compulsory ID cards, 129 Concept of the Political, The (Schmitt), 104 contractualism, 17, 19, 28, 58 control orders, 159 Cortes (Spanish parliament), 45 cosmopolitanism, 119, 131 counter-cultural fundamentalism, 28, 41, 42, 83, 92

207

208 counter-terrorism, 153–156, 161, 164 credit card fraud, 8 Criminal Justice and Public Order Act (1994), 165 critical abilities, 70–74 criticism, 41, 54, 116, 117, 118–119, 137, 180 Cromwell, Oliver, 104, 112 Cultural Revolution, 160 culture, 68 dangerous sports, 14–16 De Cive (Hobbes), 31, 71, 196 De Corpore (Hobbes), 30 debt payments, defaulting on, 13 democracy argument for, 99–100 dictatorship and, 97–102 illiberal, 101 parliamentarism and, 97–99 detachment, 51 autonomy and, 74 capacity for, 142 climate change and, 198 liberalism and, 72–73 liberalism with Hobbesian sobriety, 188–189 neo-Hobbesianism and, 53–54, 141–142 Raz’s theory, 74–76 unreconstructed Hobbesianism and, 53, 141 detention, 107, 154–158, 162–163, 164 dictatorship authorized, 28–33, 103 democracy and, 97–102 educational form of, 100 emergency powers and, 85 directed surveillance, 158 domestic law, 165–175 domestication of emergency, 2, 14–16, 85–93, 203 Dummett, Michael, 62 Dunkirk Spirit, 24 East Germany, 160 emergencies agents, 3, 17–18, 21, 40, 50, 64, 91, 164

Index avoidable, 30, 45, 145–146 black holes and, 8–9, 202 challenges for moral practice, 3 communities and, 122–124 definition of, 1 domestication of, 2, 14–16, 85–93, 203 environmental, 197–201 excusable power of, 3–5 foreign, 187–191 general principles in, 13 harm and, 14–16 ideal-type, 165 international, 191–201 justifications for actions in, ix–x legislating for, 148–175 legislating in, 148–175 liberal domestication of, 85–92, 93–109 moral latitude and, 7–14 moral obligations in, 1 normative theory of, 203–204 private, 1–21 public, 22–54 so-called, 166 sober Hobbesianism and, 167 sports and, 14–16 supreme, 91 unexpected, 6–7, 8–9 waiting to happen, 5–6 emergency ethics, 125, 202–204 emergency powers delegation of, 87 dictatorship and, 85 general vs. limited, 172 purpose of, 86 emergency response in liberalism with Hobbesian sobriety, 139–147 in wartime, 124–129 liberalism and, 121–147 national community and, 122–124 unassimilated minorities and, 129–134 Endtimes, 114 environmental emergencies, 187–201. See also emergencies ethics emergency, 125, 202–204 for private emergencies, 16–21

Index European Convention on Human Rights, 153–154, 168–170 excusability principles, 10, 19 excusable actions, 18–19, 81 excusable wrongdoing, 3–7 extreme sports, 14–16 felicity, fundamentalist pursuit of, 40–41 Fifth French Republic, 165 first principle of justice, 57 Foot and Mouth crisis (United Kingdom), 90 foreign emergencies, 187–191. See also emergencies Foreign Intelligence Surveillance Act, 161 Fourth French Republic, 165 Franco-German axis, 111 freedom of speech, 64–65, 67 fundamentalism, 40–45 civilizations and, 186 commonwealth and, xiii counter-cultural, 92 emergency response and, 134–139 institutionalized, 102–104 neo-Hobbesianism and, 56 pro-cultural, 92 Raz’s liberal theory and, 59–60 religious, 42 social criticism and, 137 Germany, unification of, 109 God, 40, 78 God-playing, 7, 17–20, 204 good law, 145, 149–150, 156, 161 good manners, 67–68 government abnormally empowered, 87–88 aboriginal life and, 35 civil war and, 35 concentration of power in, 38–40 Gross, Oren, 166 Guantanamo, 157 habit, 6 happiness, pursuit of, 40, 49–50 harm, 7–8 emergencies and, 14–16

209 Hassidic Jews, 130 Hobbes, Thomas De Cive, 31, 71, 196 De Corpore, 30 fleeing England in 1640, 34 good law, 149–150 laws of nature, 78 Leviathan, 30, 32, 33, 37, 38, 40, 42, 45, 54, 62, 67–70, 71, 154, 197, 198 on concentration of power, 38–40 on dictatorship, xii on emergency response, 139–141 on fundamentalism, 95, 40–45 on individualism, 67–70 on permanent dictatorship, xv on public emergency, 45–50 on state of nature, 25–28 on threat to security, 27 on war and authorized dictatorship, 28–33 Hobbesianism unreconstructed. See unreconstructed Hobbesianism neo-. See neo-Hobbesianism sober. See sober Hobbesianism Human Rights Act (1998), 154 Human Rights Covenants (1966), 178 human rights standards, 118 human security, 178, 180–187, 188, 189, 190, 191 humanitarian intervention, 122, 123, 187–191 Huntington, Samuel, 110–114 Hurricane Katrina, 23, 43–44, 88 ideal-type emergency, 166 immorality, 3, 78, 83 imports, 197 impulses, 36, 51, 53 individualism, 67–70 insecurity, 31, 49, 180–182, 188–189, 199, 205 institutionalized fundamentalism, 102–104 institutions, 20–21 legitimization of, 61–64 Raz’s liberal theory, 58–59 integrity, 80–83 inter-civilizational wars, 112

210 internal war, 27, 48, 55, 112, 139, 143, 171 International Covenant on Civil and Political Rights, 168, 169 international emergency, 191–201 International Emergency Economic Powers Act (1977), 165 international law, 165–175, 180, 190 international morality, 119–120 international war, 70 internationalism, 119 intrusive surveillance, 158, 161 Islamic civilization, 111 Japan, 91, 110, 189 Japan earthquake (2011), 91 Jews, 105, 130 July 7 bombings (London), 88, 156 Just and Unjust Wars (Walzer), 124 Kant, Immanuel on immorality, 3 on state of nature, 26–27 Katrina (hurricane), 23, 43–44, 88 Kelsen, Hans, 95 Kurds, 168 Law of Equity, 154 laws, 47–48 domestic, 165–175 good, 149–150 ineliminability of personal from, 95–97 international, 165–175 laws of nature, 46, 54, 78, 154 legislation, 148–175 emergencies and, 148–175 good laws, 149–150 normal vs. abnormal times, 153–164 detention, 154–158 domestic law, 165–175 international law, 165–175 outweighing of liberty by security, 162–164 surveillance, 158–161 sober Hobbesianism and, 151–153 Leviathan (Hobbes), 30, 32, 33, 37, 38, 40, 42, 45, 54, 62, 67–70, 71, 154, 197, 198

Index liberalism domestication of emergency and, 76–79 emergency powers and, 76–79 emergency response and, 121–147 parliamentary, 97–99 practical rationality and, 72 war and, 101–102 liberalism with Hobbesian sobriety, 55–84, 85, 195. See also sober Hobbesianism autonomy and social forms, 67–70 emergency response in, 85, 139–147 environmental emergencies and, 198–199 humanitarian intervention and, 188–189 institutions and, 61–64 Joseph Raz’s liberal theory and, 58–61 neo-Hobbesianism and, 56–57 Raz’s liberal framework and, 74–84 reason and critical abilities, 70–74 rights grounded on interests, 64–67 security and, 185–186 security of person and, 57 thin conception of security and, 176–177 liberties, 57 security and, 162–164 violence in exercise of, 57 life-plans, 74–75 life-saving, 2, 12 excusable power of emergency, 3–5 murder and, 12, 19–20 over-ridingness of, 11–12 London bombings, 88, 156 looting, 22, 37, 162–163 loyalty, 60, 75, 80, 83, 112–113, 140 manners, 67–68 migration, 110, 132, 197, 199 minimal morality, 117–120, 186 minorities, unassimilated, 129–134 Mitford sisters, 127 monarchy, 31, 39, 99 moral black holes, 8–9, 22–28 absence of local authority and, 24 emergencies and, 202

Index state of nature and, 25–28 unexpected emergencies and, 8–9 moral latitude, 7–14 moral obligations, 1 moral theory, 16, 19, 66 morality international, 119–120 minimal, 117–119 public emergency and, 86 Morality of Freedom, The (Raz), 58, 64, 66 multiculturalism, 82, 110, 111–112, 114–115 murder, 3, 10, 11, 59, 121, 146, 148, 155, 189 national autonomy, 134–139 national communities, 122–124 national security, 87, 158 natural disasters, 23, 146 neo-Hobbesianism, 50–54, 55–56. See also sober Hobbesianism; unreconstructed Hobbesianism contractualism and, 58 detachment in, 75, 141, 186, 189 internationalization of security and, 189–190 liberalism with Hobbesian sobriety and, 56–57, 73 self-interests in, 141 social contract in, 146 security and, 50–54 New Orleans (Louisiana), 23, 43–44 New York blackout (1977), 162–164 Ni Aolian, Fionnuala, 166 normality, 89 Northern Ireland, 168 Office of Surveillance Commissioners, 158 Ogata, Sadako, 178, 179, 182, 185, 187, 188, 191 one-man sovereignty, 39 Paris Minimum Standards, 169 parliamentarism, 94, 97–99, 101, 103, 104, 109–110 peace-keeping behaviours, 67–68, 148 perfectionism, 59, 73, 76–79, 91, 192 personal needs, 81–82

211 personal, ineliminability from legal, 95–97 playing God, 7, 17–20, 204 political disorder, 23 politics, us and them in, 104–109 poverty, 22, 25, 44, 178, 180, 181, 182, 183 power absolute, 175 concentration of, 38–40 for general emergency, 172 for limited emergency, 172 practical rationality, 55–56, 71–72, 73, 77, 116, 120 Prevention of Terrorism Act (1974), 165 Prevention of Terrorism Act (2005), 159 principle of charity, 90–91 private emergencies, 1–21. See also emergencies; public emergencies avoidance of, 2 ethics for, 16–21 institutions, 20–21 playing God, 17–20 excusable wrongdoing and, 3–7 harm and, 14–16 moral black holes and, 8–9 to public emergencies, 22–25 unexpected, 6–7 vs. public emergencies, 1 waiting to happen, 5–6 private property, rights to, 51 pro-cultural fundamentalism, 41, 92–93 profligate consumption, 195, 198, 200 Protestantism, 111 public disorder, 22, 24 public emergencies, 22–54. See also emergencies; private emergencies black holes and, 25–28 concentration of power in, 88–89 Hobbes on, 45–50 moral demand, 2 moral standards and, 89–90 morality and, 86 neo-Hobbesian framework, 50–54 private emergencies to, 22–25 vs. private emergencies, 1

212 public institutions, private emergencies and, 2 public opinion, 161 public security, 41, 45–50, 51–52, 139, 145, 185, 196 pursuit of happiness, 40, 49–50 Pythagoras’ Theorem, 39 Questiaux Report, 169 R v. Dudley and Stephens, 10–11 racism, 6 rape, 8, 14 Rawls, John, 57 Raz, Joseph, 58–67 insobriety about personal projects, 79–84 Morality of Freedom, The, 58, 64, 66 on autonomy, 74–75 on communitarism, 59 on individualism, 68–70 on institutions, 58–59, 61–64 on rights, 64–67 on security, 204–205 and sober Hobbesianism, 60–61 on social forms and state-perfectionism, 76–79 reason, 70–74, 76–79 relativism, 134–139 religion, 113, 116, 136–137, 138, 141–142, 186–187 religious fundamentalism, 42 Report of the Commission on Human Security, 178, 180 rights absolutism of, 126 freedom of speech, 64 grounded on interests, 64–67 to life, 64, 66 to personal security, 64, 66 riots, 22, 52 Robinson, Mary, 178 rule consequentialism, 16 Russia, 110 Rwanda, 23 salus populi, 95, 139 Scanlon, T.M., 17, 19, 58 Schmitt, Carl, 104–109

Index on democracy and dictatorship, 97–102 on ineliminability of personal from legal, 95–97 on institutionalized fundamentalism, 102–104 on liberal domestication of emergency, 93–109 on pro-cultural fundamentalism, 92 Second World War, 91, 124 security democratization of, 51 human, 180–187 liberalism with Hobbesian sobriety and, 57 national, 158 neo-Hobbesianism and, xvi, 50–54 outweighing of liberty by, 162–164 right to, 64, 66 state, 180–187 thick conception of, 178–180 thin conception of, 176–177 threats to, 88, 180–181 self-defence community survival and, 127 concept of community and, 124 international security, 190 liberalism with Hobbesian sobriety and, 191 manners and, 68 national, 132 national emergency and, 125 playing God, 18, 19 reasons for action, 62 right to, 138 Sen, Amartya, 178, 179, 182, 185, 187, 188, 191 September 11 attacks, 45, 88, 90, 104–107, 130 Sinic civilization, 111 Siracusa Principles, 169 sober Hobbesianism. See also neo-Hobbesianism; unreconstructed Hobbesianism as antidote to fundamentalism, 205–206 authorized dictatorship and, 28–33 emergencies and, 167 environmental emergencies and, 200

Index internationalization of security and, 190 legislation and, 151–153 practical rationality and, 71 Raz’s liberal framework and, 60–61 unreconstructed Hobbesianism and, 28–38, 70–74 war and, 33–38 sobriety, 40–45, 50–54 so-called emergencies, 166. See also emergencies social forms autonomy and, 67–70 conservatism about, 76–79, 83–84 emergencies and, 140 life-organizing pursuits and, 74–76 perfectionism and, 77–79 Razian, 91, 117, 140, 194 reasoning and, 76–77 Sorel, Georges, 103, 115 sovereign, 38–39, 53 as sole judge, 62 charm offensive, 148 citizens’ well-being and, 55 God and, 78 good law and, 149–150 Special Comment No. 29, 169–171, 173 special interests, 91 sports, emergencies and, 14–16 Stasi, 160 state failure of, 43, 173–174 perfectionism, 76–79 state of nature, 25–28, 30, 34, 35, 38, 43–45, 61–62, 93, 197 state security, 180–187 supreme emergency, 91, 122, 124–125, 205 surveillance, 158–161 surveys, 161 Sweden, 135–136 Taliban, 105–106 terrorist “sleeper”, 164 theft, 8, 148, 163 thin morality, 117 threshold deontology, 16–17 tidal wave, 8 torture, 8, 14, 21, 120, 135

213 traits, 75, 80 trolley problem, 18, 20, 21 Turkey, 110, 168 unexpected emergencies, 6–7. See also emergencies moral black holes and, 8–9 United Kingdom counter-terrorism strategy, 155–156 surveillance, 158 wartime government, 124 Western civilization, 111 United States aftermath of Hurricane Katrina, 43 Asia and, 112 national identity, 110 Taliban regime and, 106 Western civilization and, 111–112 Universal Declaration of Human Rights, 178 unreconstructed Hobbesianism, 70–74, 145, 185, 195. See also neo-Hobbesianism; sober Hobbesianism authorized dictatorship and, 28–33 environmental emergencies and, 200 humanitarian intervention and, 188 internationalization of security and, 189 legislative detachment in, 53–54 sovereign in, 154 thin conception of security and, 176 to sober Hobbesianism, 28–38 war and, 28–33 us/them, 104–109, 118, 176–177, 187 USA/Patriot Act, 161 utilitarianism, 16, 18–19 Vietnam, 112, 113, 115 vulnerability, 13, 22, 44, 187 Walzer, Michael, 117–120, 121 on emergency response in liberalism with Hobbesian sobriety, 139–141 on fundamentalism, 137 on national autonomy, 134–139

214 Walzer, Michael (cont.) on national emergency in wartime, 124–127 on unassimilated minorities, 129–134 wars, 24–25 authorized dictatorship and, 28–33 civil, 22, 24, 26, 30, 32, 33, 35, 40, 44, 124, 170, 174, 180, 183, 188, 204 cold, 33–35 commodity and, 196 emergency response in, 124–129 Hobbes’s concept of, 33–38 Hobbesianism and, 139, 141, 145, 149, 152 inter-civilizational, 112 internal, 27, 48, 55, 112, 139, 143, 171

Index international, 70 institutionalized fundamentalism and, 102–104 liberalism and, 101–102 as public emergencies, 168, 170–173 Schmittian politics and, 106, 113 Second World War, 91, 124–125 War on Terror, 130, 133, 155, 162, 163–164 Weimar Republic, 93 Western civilization, 111–114, 116 whites-only neighbourhood, 5 Williams, Bernard, 80–82 World Health Organization, 193 World War II, 91, 124–125 Yeltsin, Boris, 109