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Sovereignty, Emergency, Legality

Austin Sarat
Cambridge  University Press, 2010, 312 pages
$95.00 

Reviewed by John T. Parry

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In recent years, and especially with the advent of the War on Terror, academics and policy makers have paid increasing attention to the ways in which liberal states respond to emergencies. Much of this writing has taken the form of relatively general or theoretical inquiry. It has addressed such questions as whether “ordinary” rules of law still govern in situations of emergency, whether emergencies generate exceptions to normal rules, and whether government action might answer to different rules—or to no rules at all.[1] Another line of analysis has argued that the distinction between emergency and normal times no longer exists in modern societies so that the states of exception and the different rules (or the lack of rules) that they generate are already part of modern governance.[2]

The essays in Sovereignty, Emergency, Legality[3] recognize the importance of these questions, but they also insist, as Austin Sarat writes in an illuminating introduction, on the need “to think beyond the drama of the sovereign suspension of legality to appreciate the more ordinary ways through which law anticipates and responds to emergency.”[4] The contributions to this volume, he continues, represent “the work of a second generation of post-9/11 scholarship, one that seeks to get beyond binary conceptions to explore new analytic possibilities.”[5] More specifically, Sarat claims, the chapters “point the direction for an historically and contextually rooted understanding” of the many issues raised by emergencies.[6] For example, “anticipating emergency and responding to it may be embedded within an existing regulatory apparatus” that routinely and repeatedly interacts with people in their daily lives.[7]

The contributors to Sovereignty, Emergency, Legality—the authors of the five lead essays and the authors of the comments to each essay—succeed in the task that Sarat has laid out for them. One of the most intriguing essays, Leonard C. Feldman’s The Banality of Emergency: On the Time and Space of “Political Necessity,[8] is also the most theoretical—yet it places the debate over emergency power into a concrete political context that illustrates the ordinary ways of the law’s responses to emergency.[9] Feldman argues that commentators have erred by conceptualizing emergencies as events in which time is compressed, in which “there is no time, there is only one thing to do, and such a thing will be done”[10]—as a moment of sovereignty and sovereign decision. The result of this compression, Feldman contends, is a misplaced focus on the spatial aspects of emergency, on whether the necessity or emergency “is and should be inside the law or outside the law,” and on “sovereignty over governmentality.”[11] While the focus on sovereignty privileges a moment of decision, a governmentality analysis emphasizes “the ongoing temporal processes of managing a population.”[12] That is to say, while writers such as Giorgio Agamben argue that the normalization of the exception transforms the political system into “a killing machine,”[13] Feldman draws from Foucault to emphasize the creation of a “moral and discursive terrain upon which prerogative and its contestation take place.”[14] Using this framework, Feldman analyzes police work in the United States, and he suggests that commentators too often assume that this work consists of “sovereign judgment” about how much violence is necessary to control irrational individuals and armed mobs.[15] He rightly observes that much actual or ordinary police work does not take this form, and he highlights the community caretaking aspects of police work, which partakes more of governmentality than of sovereignty.[16]

David Dyzenhaus’s essay, The “Organic Law” of Ex Parte Milligan,[17] is also a successful exploration of the nuances of emergency power. Dyzenhaus presents an intricate analysis of the Supreme Court’s 1866 decision in Ex parte Milligan[18] and links it both to A.E. Dicey’s views on martial law and the Court’s much laterBoumediene v. Bush[19] decision.[20] His larger goal is to consider and weigh the importance of arguments about the location of sovereign power and the qualities that are necessary for an adequate rule of law. And, like Feldman, he attempts to shift the debate away from an emphasis on location or space. Thus, in contrast to “realists” who advocate executive or legislative “unilateralism,”[21] he argues that “the crucial feature of legal order is not the location” of the power to decide fundamental issues of legality.[22] Rather, “[a]s Dicey showed, and as the majorities in both Milligan and Boumediene attest,” the important issue is “[a legal order’s] quality as a legal order, an order in which government exercises its power in accordance with law, in accordance, that is, with the rule of law or legality.”[23] What matters for Dyzenhaus, in other words, are the underlying normative arguments and commitments about who exercises power, how that power is contained, and whether “there is an ‘organic law’ around the protection of individual liberty.”[24] Indeed, he concludes that a legal order “which contained no positive law or other material protections of liberty would be a very odd thing, so odd that even its formal claim to be a legal order would be doubtful.”[25] Throughout, Dyzenhaus emphasizes the common law qualities of constitutional law as a bulwark against unilateralist arguments of any sort.[26]

Patrick O. Gudridge adopts a similar perspective in Emergency, Legality, Sovereignty: Birmingham, 1963,[27] but he pushes its implications further. He begins by presenting a portrait of constitutional law as, on the one hand, a set of “rules and norms,” and, on the other hand, “a grab bag of models, structures, and either outrageous or exemplary paradigms.”[28] He traces the Supreme Court’s response to emergencies through several cases and argues that a form of overbreadth scrutiny “figures prominently in [several] cases in which circumstances present emergency or otherwise extraordinary aspects.”[29] In these cases—he highlightsHamdi v. Rumsfeld[30] as an important example—the Court goes well beyond the facts of the cases before it, to consider the more general issues that the cases raise and to emphasize “‘due recognition . . . of competing concerns.’”[31]

For Gudridge, moreover, this process of recognizing competing concerns is more than a methodological counterpart to Dyzenhaus’s organic law. Gudridge stresses that “[t]he constitutional text—or rather, the constitutional accumulation of texts—coexists with, is both shaped by and shapes, an ongoing politics of conflict, compromise, and sometimes resolution rarely easily characterized as coherent expression of political will.”[32] Even more, he insists that “[c]omplex economic, social, and cultural conflicts are . . . in the main registered, considered, and addressed: framed somehow within the constitutional mix, whether in tension or in harmony with other constituents.”[33] It follows, for Gudridge, that judges cannot be narrowly legalistic when they confront cases of emergency or crisis.[34] Nor, it would appear, should they limit their analysis to consideration of organic law. Rather, they should adopt a more critical and open-textured approach to the task of legal and constitutional interpretation.

Paul Horwitz’s comment[35] on Gudridge’s essay speaks to readers who worry that Gudridge too easily discounts the benefits of a more constrained approach to legality and judicial decision-making. Horwitz stresses the importance of the judicial oath, both as it defines the specific powers of judges and also as it places them within a community of officials who have taken the same or similar oaths—and therefore requires them to address their relationships with these other officials.[36] Thus, while “the judges’ oath can plausibly be read to require them to exercise absolute independence in determining what the Constitution demands in the case at hand. . . . [T]he questions of epistemic and legal authority that haunt the oath also seem to demand some room for listening to and respecting the decisions of other oath-takers.”[37] In contrast to Gudridge’s insistence that judges cannot close themselves off from the world when they decide cases, Horwitz suggests that judges’ relationships with the world around them often include the obligation to defer to the views, perceptions, and conclusions of others.[38]

Horwitz’s claim that deference is a principled and even required aspect of judicial work makes his comments responsive to Dyzenhaus’s essay as well.[39] Dyzenhaus traces the twists and turns of the Supreme Court’s War on Terror cases and worries that until Boumediene, the Court was too willing to defer, to adopt a stance of legislative unilateralism.[40] Horwitz, in turn, makes deference an important aspect of the judicial role but also observes that when courts defer, “they can expect and demand that the decision-maker acts in good faith in reaching a decision to which the courts will defer.”[41] Following his analysis, one could argue that the War on Terror cases illustrate the Court’s effort to engage in judicial review while also respecting the views of the other branches and the limits of its own role.  WithBoumediene, however, this balancing effort collapsed and so did the Court’s deference.[42] As Horwitz admits, “[a] coordinate authority that is not acting within these boundaries does not deserve deference.”[43] In such a case, presumably, Horwitz would come closer to Dyzenhaus’s view that the courts must fall back on the organic law.

In The Racial Sovereign,[44] Sumi Cho and Gil Gott assess the engagement of legal liberalism with national-security issues. They contend that “so much of the post-9/11 scholarship on national security law has revolved around a frustrating emergency/legality binarism that seems to have little to say about the fundamental social contingencies of ‘sovereignty’ and ‘security.’”[45] They propose a more critical stance, “which requires being willing to foreground the exclusions and social contingencies of ‘liberal enmity’ in the construction of security and sovereignty related law and politics.”[46] To support this contention and proposal, they examine ways in which modern conceptions of sovereignty in the United States depend upon race, with specific attention to Supreme Court decisions on the rights of Native Americans, the immigration of Chinese workers at the end of the nineteenth century, and the limited application of constitutional rights in the “unincorporated territories” that became U.S. possessions after the Spanish–American War.[47] They next turn to representative national-security cases and issues, and they argue that contemporary U.S. law reflects not only “ideological fantasms of unmoored liberal enmity” against Muslims and Arabs but also “structures of resource control and globalization.”[48]

Cho and Gott are certainly correct that American political discourse makes room for persistent and often vicious anti-Muslim and anti-Arab views and policies. But, while these failures of U.S. policy and politics—and, by extension, of liberalism—are well-known, it is difficult to argue that national-security scholarship has ignored or downplayed issues of race. As Debra Lyn Bassett points out in her response[49] to this essay, many commentators inside and outside of the legal academy recognize that sovereignty is linked to or rests on ideas of race or otherness.[50] Even the subset of national-security scholarship by “traditional” legal liberals showssome awareness of these issues, although its engagement with them is sometimes incomplete or ahistorical.[51]

The important issue for Cho and Gott, though, is less the narrow question of what law professors write and more the broad structure of U.S. legal and political discourse. Thus, in their conclusion—in contrast with legal liberalism or Carl Schmitt’s “sovereign realism”[52]—they observe that “Walter Benjamin posited a permanent ‘state of exception,’ understood as the legal and political articulation of subaltern social relations in modernity.”[53]  It is unclear whether they advance this point simply as a way to gain critical perspective, or whether they also intend it to form the basis for a new politics. If the latter, they appear to hint at an understanding of the state of exception as a potential site for progressive change[54]—which raises the question of whether this possibility is ultimately worth the risk.

Michael Rosenfeld’s essay, Should Constitutional Democracies Redefine Emergencies and the Legal Regimes Suitable for Them?,[55] closes the book. Rosenfeld draws on his earlier work on “comprehensive pluralism,” according to which “the polity must accommodate as many existing conceptions of the good as possible” but need not admit them on their own terms.[56] Rather, because comprehensive pluralism is itself “a conception of the good . . . [that is] both open toward, and dependent on, other conceptions of the good,”[57] these other conceptions, “such as certain religious ones[,] may be readmitted, but on condition of reigning in certain of their precepts.”[58] A chief goal of this approach is “to regulate the external relationships between self and other” to achieve “a proper balance between unity and diversity.”[59] Rosenfeld then advances a “distinction between ordinary times, times of crisis, and times of stress”[60]—a tripartite distinction meant to avoid some of the flaws of the ordinary–emergency binary. Drawing on a series of case studies, he considers how the theory of comprehensive pluralism, and the relationship between self and other, should operate in each category, with a particular focus on times of stress.[61]

Rosenfeld concludes:

[C]onditions of stress do not necessarily call for militant democracy or an increase or decrease in democratic rights or in the reach of pluralism. Instead, the right solution requires a proper readjustment and balancing of competing rights and objectives depending on the particular circumstances involved, and on how far from, or near to, conditions of crisis, existing conditions of stress happen to be.[62]

By contrast, in a time of true crisis, habeas corpus rights and “ordinary parliamentary democratic politics” can be suspended.[63] In the end, however, his goal is not to catalog what governments can do during a crisis. Rather, by distinguishing between emergencies and times of stress, he aims “to strengthen the grip of constitutional democracy in an age of pluralism.”[64] Rosenfeld’s essay, thus, has a certain similarity to Bruce Ackerman’s proposal in Before the Next Attack[65] for an emergency powers statute that would expire unless renewed by increasing supermajorities.[66] Both seek an intermediate position between what they fear is the inadequate legalities of ordinary times, and the potentially unconstrained politics of an emergency.

Indeed, one of the major themes that emerges from Sovereignty, Emergency, Legality is that of the middle path. By focusing on specific contexts and ordinary ways of anticipating or responding to emergencies, these essays do not simply advance or confirm the claim that daily politics is emergency politics. They also demonstrate that responding to emergencies is itself part of daily politics. Much of the time, one might therefore conclude, the best approach calls for calm, not panic—for flexibility within existing structures, rather than increasing grants of unconstrained executive power. But Sovereignty, Emergency, Legality also requires us to recognize that the daily politics of emergency, as well as complacency about those politics, carry risks for legal and political discourse, and for the people whose lives they envelop.


[1]. See, e.g., Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011, 1021–22 (2003) (identifying (1) a “Business as Usual model” whereby ordinary rules are followed, (2) an accommodation model, under which exceptions to ordinary rules are introduced, and (3) a model that distinguishes between emergency rules and ordinary rules). For a prescient discussion of these issues, see Jules Lobel, Emergency Power and the Decline of Liberalism, 98 Yale L.J. 1385 (1989).

[2]. See, e.g., Gross, supra note 1, at 1073–75 (arguing that modern emergencies are “entrenched and prolonged” such that crises cannot be distinguished as easily as they once were).

[3]. Sovereignty, Emergency, Legality (Austin Sarat ed., 2010) [hereinafter Sovereignty].

[4]. Austin Sarat, Introduction to Sovereignty, supra note 3, at 6.

[5]. Id.

[6]. Id. at 15.

[7]. See id. at 4 (recognizing role of the Transportation Security Administration in regulating airline transportation as a means of preventing attacks).

[8]. Leonard Feldman, The Banality of Emergency: On the Time and Space of “Political Necessity,” in Sovereignty, supra note 3, at 136.

[9]. See id. at 143 (identifying contemporary debate between theorists who view responses to emergencies as extralegal and those who view legal responses within existing legal frameworks).

[10]. Id. at 136.

[11]. Id. at 137–38.

[12]. Id. at 137.

[13]. Giorgio Agamben, State of Exception 86 (Kevin Attell trans., 2005).

[14]. Feldman, supra note 8, at 152.

[15]. Id. at 154, 157–58.

[16]. Id. at 160–62.

[17]. David Dyzenhaus, The “Organic Law” of Ex Parte Milligan, in Sovereignty, supra note 3, at 16.

[18]. 71 U.S. (4 Wall.) 2 (1866).

[19]. 553 U.S. 723 (2008).

[20]. Dyzenhaus, supra note 17, at 53–54.

[21]. Dyzenhaus defines unilateralism as a political order in which one branch of government serves as the “ultimate arbiter of the most fundamental questions of legality.” Id. at 21.

[22]. Id. at 22.

[23]. Id.

[24]. Id. at 56.

[25]. Id. at 57.

[26]. See, e.g.id. at 27 (citing Milligan to illustrate that Congress can suspend an individual right, but that congressional action alone does not make such a suspension legal).

[27]. Patrick O. Gudridge, Emergency, Legality, Sovereignty: Birmingham, 1963, in Sovereignty, supra note 3, at 72.

[28]. Id. at 73 (quotation marks omitted).

[29]. Id. at 104–08 (citing Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); and Mathews v. Eldridge, 424 U.S. 319 (1976)).

[30]. 542 U.S. 507 (2007).

[31]. Gudridge, supra note 27, at 115.

[32]. Id. at 117.

[33]. Id. at 117–18.

[34]. See id. at 119 (recognizing that in cases of emergency, judges can identify the circumstances and “make available methods of critical evaluation” to address legal issues).

[35]. Paul Horwitz, Comment on Chapter 2: “Order” in the Courtin Sovereignty, supra note 3, at 120, 120–35.

[36]. Id. at 123–27.

[37]. Id. at 127.

[38]. Id. at 126–27.

[39]. Id. at 128–29.

[40]. Dyzenhaus, supra note 17, at 35.

[41]. Horwitz, supra note 35, at 127.

[42]. Dyzenhaus, supra note 17, at 35–36.

[43]. Horwitz, supra note 35, at 127.

[44]. Sumi Cho & Gil Gott, The Racial Sovereign, in Sovereignty, supra note 3, at 182.

[45]. Id. at 188.

[46]. Id. at 189.

[47]. Id. at 199–212 (citing Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) (rights of Native Americans); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (same); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (same); Chae Chan Ping v. United States, 130 U.S. 581 (1889) (immigration of Chinese workers); Nishimura Ekiu v. United States, 142 U.S. 651 (1892) (detention of Japanese immigrant); Fong Yue Ting v. United States, 149 U.S. 698 (1893) (immigration of Chinese workers); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (same); De Lima v. Bidwell, 182 U.S. 1 (1901) (rights in the unincorporated territories); Downes v. Bidwell, 182 U.S. 244 (1901) (same)).

[48]. Id. at 225–26.

[49]. Debra Lyn Bassett, Comment on Chapter 4: Toward a Nonracial Sovereign, in Sovereignty, supra note 3, at 228, 228–39.

[50]. See, e.g.id. at 228 (citing Angela P. Harris, Introduction, 55 Fla. L. Rev. 319, 330 (2003)) (identifying race as “central to the exercise of sovereign power in the United States”).

[51]. Id. at 235–36.

[52]. Cho & Gott, supra note 44, at 182, 226. According to Cho and Gott’s description of Schmitt’s realism, sovereignty is “a politico-legal dynamic that takes hold during times of emergency and calls forth sovereign suspensions of law.” Id. at 182.

[53]. Id. at 226.

[54]. See id. at 227 (advocating a shift from racialized perceptions of sovereignty, emergency, and legality).

[55]. Michael Rosenfeld, Should Constitutional Democracies Redefine Emergencies and the Legal Regimes Suitable for Them?, in Sovereignty, supra note 3, at 240.

[56]. Id. at 245.

[57]. Id. at 246.

[58]. Id. at 245.

[59]. Id. at 250.

[60]. Id. at 251.

[61]. Id. at 258–71.

[62]. Id. at 265.

[63]. Id. at 267.

[64]. Id. at 272.

[65]. Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism 80 (2006).

[66]. See Rosenfeld, supra note 55, at 266 (emphasizing that the War on Terror will more likely lead to “times of stress” in the long term rather than to “a state of crisis”).