Mark Neocleous (2006) suggests the idea of a permanent state of exception, or emergency, has “at its heart one basic proposition: that the emergency involves a suspension of the law.”[1] However, Neocleous does not agree with the assumption that this permanent state of emergency is a relatively recent development: “read historically through the lens of emergency power, the current conjuncture is not categorically different to much that has gone on before. As such, the idea that we have recently moved into a permanent state of emergency is historically naïve.”[2] Indeed, continuous emergencies, most often war have allowed for exceptions to established law.
Against the logic of liberalism, which suggests that law can allow for a return from the state of emergency, Neocleous criticizes the “legal fetishism” that suggests law is a universal solution to problems posed by power. This “involves a serious misjudgment in which it is simply assumed that legal procedures…are designed to protect human rights from state violence.”[3] This legal fetishism not only deradicalizes but it also overlooks emergency measures as part of the everyday exercise of power. It is for this reason that a return to normal law is nothing more than a return to political policing of activists, workers, and immigrants. In other words, it is not possible to return to a time when law was not used as power. Do we want to return to the time of the Sedition Act of 1798, Lincoln’s suspension of habeas corpus, the Pinkertons, the Alien Friends Act, or the Espionage Act? Neocleous writes “the least effective response to state violence is to simply insist on rule of law… What is needed is a counter politics” against the normality of class power and oppression by law.[4] This counter politics is likely what Walter Benjamin hoped for in number VII of his Theses on the Philosophy of History:
The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism.”[5]
Similarly, Raskin (1976) points out that the United States has organized itself according to emergency rules since 1933, first for economic reasons and later for imperial reason. Going further, he also posits that modern presidential power rests on the “willingness to rationalize class relations…” the recognition that “until 1975, one was not to undermine the military and national security apparatus grouping” and “to recognize [Congress’] legitimizing function and find a means of coopting it into the national security apparatus or the lockstep of the great corporations.”[6]
[1] Neocleous, Mark, “The Problem with Normality: Taking Exception to ‘Permanent Emergency’,” Alternatives 31, 2006, at 193.
[2] Id, supra, at 194.
[3] Id, supra, at 207.
[4] Id, supra, at 209.
[5] Benjamin, Walter, Theses on the Philosophy of History, in Illuminations: Essays and Reflections, 1969, at 257 (emphasis added).
[6] Raskin, Marcus, “Democracy Versus the National Security State,” Law and Contemporary Problems, 40(3) 1976, at 186.
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