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6 Legislating for emergencies andlegislating in emergencies

Although it seems to me to be possible to apply the sober Hobbesianapproach to emergencies of all the kinds surveyed at the beginning ofChapter 2, I confine myself in what remains of the book to just a fewexamples – domestic terrorist threats conceived as emergencies, and,internationally, conflict situations appearing to justify humanitarianintervention and, quite differently, climate change.

Recall that in Hobbes, sovereigns lay down no rights, and are underno binding obligations. They accept the responsibility for the pro-tection of the many but make no contract with the many. With theresponsibility goes complete discretion to decide on the means of pro-tecting the many from one another and from external attack. If thesovereign decides that a universal curfew in the hours of darkness isrequired for domestic security, he may impose such a curfew. If hethinks that a charm offensive, consisting of friendship-building visitsto neighbouring countries, is in order for the sake of preventing exter-nal aggression, then he is entitled to embark on the charm offensive.Of course, not everything that the sovereign decides to do will nec-essarily work. The curfew may protect the many at the cost of theirfeeling imprisoned in their homes. The charm offensive may make thesovereign look foolish and weak abroad. But so long as the measuresthat the sovereign adopts are intelligible as peace-building or peace-maintaining measures, and adopted because he thinks they are, theydo not give the many reason to regret their gift of submission, and sothe sovereign behaves as a sovereign ought to, according to Hobbes.

Apart from gestures made in the international arena to other headsof state, the main medium for the sovereign’s security measures isdomestic law.1 Through law, in particular, the advertised penalties forassault, theft and murder, the many are given reasons for refrainingfrom violence of all kinds, reasons they could not have had in the state

1 See Leviathan, ch. 30.

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Legislating for emergencies and legislating in emergencies 149

of nature. Law is supposed to stay violent people’s hands. But it is notsupposed to be a straitjacket. This is where Hobbes’s concept of goodlaw 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 inorder to raise money for military weapons would not be necessary if itpredictably left them so poor that they had to steal or kill to get enoughto eat. Far from being necessary, the measure would be self-defeating.Similarly, an all-night curfew might keep malefactors and their possiblevictims at a safe distance from one another, but if the curfew alsointerfered with movements of food supplies or caused people to feelimprisoned in their own homes and receptive to demagoguery intendedto make them rise up against this confinement, then, again, it wouldbe an invitation to violence rather than a safeguard against it. In adifferent way, a law enabling precautionary personal searches mightbe unnecessary if it were introduced without any evidence that, in theplaces the searches were carried out, people were hiding dangerousmaterials or weapons.

Hobbes’s concept of the good law suggests that a balance needs tobe struck. On the one hand, the legal regime should recognize sourcesof harmless well-being – a reasonably full stomach, family life, unen-cumbered movement for those minding their own business – and allowthe many to get on with the enjoyment of these things. The many mustalso have the freedom to work and create the wealth to pay for anunavoidable defensive war and routine internal policing. On the otherhand, the legal regime should snuff out violence as far as possible, andrestrict whatever liberties encourage violence.

Good law calls for two forms of self-restraint on the part of thesovereign. The first is the restraint of the appetites of the natural personthe sovereign is, if the sovereign is a monarch; or the natural appetitesof 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 subordinatedto the security needs of the many.2 Second, the sovereign must not thinkthat his opinion alone counts. Though it is worse to be dependent ontoo much advice than to use one’s own head as sovereign, best ofall is to listen to the advice of good counsellors – those who give

2 For elaboration, see my ‘The burdensome freedom of sovereigns’ in T. Sorelland 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 Inparticular, a sovereign ought to make use of civil science – that is, readLeviathan or De cive, which Hobbes perhaps intended as counsel ofa particularly superior, conclusive, kind.4 What ties these two formsof self-restraint together is the way both act against personal bias andpersonal passions and make detached judgement the basis of law. Onthe one hand, in framing laws or policies, the sovereign tries to take thepoint of view of the many he personifies rather than his own personalpoint of view; on the other, he is supposed to form a judgement basedon the views of those whose experience makes them expert, or on thebasis of rigorous reasoning. He is not supposed to be guided by merepersonal hunches, or by the badly worked out advice of a horde ofsycophants.

Hobbes’s civil science contributes more than a requirement ofdetachment for law-making: it gives pointers to the content of thelaw and the conduct of legislators.5 It prohibits speech from subjectsthat criticizes or demeans the sovereign. It attempts to demolish thebelief that individual judgement is authoritative. It denies individualproperty rights. It tells against free trade. In short, from the detachedpoint of view as filled in by Hobbes, the appropriate legal regime isdeeply illiberal.

Now, as was noted in Chapter 4, we generally assume that emer-gency situations are temporary departures, often short-lived depar-tures, from circumstances in which there is no imminent, large-scalethreat to life. Not only do we take normal circumstances to pose noimminent threat to life; we suppose that, normally, an effective regimeagainst violence is compatible with recognized liberties to criticize theauthorities, to hold property, and to sound off as if our opinions mat-tered. The fact that these liberties are recognized internationally inmuch-ratified treaties that also recognize emergencies is evidence thatinternational legal norms are in keeping with the assumptions juststated: in normal circumstances illiberal legislation is out of order.But in the post 9/11 world, it is sometimes thought, a new normal isemerging, that, is a legal regime appropriate to a prolonged period ofemergency.6 It is a regime typified by legislating for emergency within

3 See Leviathan, ch. 25, p. 182.4 See my Hobbes (London: Routledge, 1986), p. 135. 5 See Leviathan, ch. 29.6 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 isthe subject of this chapter. I shall argue that even when a new normalis motivated by a concern with security, it is not necessarily accept-able: for one thing, the new regime may be predictably ineffective; foranother, the threat it is directed against may not be big enough orimminent enough to count as an emergency.

Hobbes has his own, unusual, ideas, about what to count as thenormal case. For him, as we have seen, warlike tendencies in humanbeings constitute an eternal normal, and so legislation for normal timesshould not essentially be different from emergency legislation. Legisla-tion in normal times has to counteract the eternally present causes ofall-out war and not just the causes of local and passing violence. More-over, counteraction is the most that can be achieved: legislation doesnot eliminate the causes of war in human beings. It just suppresses dis-plays of the natural effects of those tendencies: namely fighting. Moreliberal regimes, according to Hobbes, are worse than ineffective in theface of these permanent aggressive tendencies. This is because a liberalregime activates the impulses that good legislation keeps dormant. Theliberal regime is the insecure regime par excellence.

A sober Hobbesian way of thinking is quite different from the wayof thinking of Hobbes himself. It supposes that each human beinghas a capacity for detached judgement that can counteract violentinclinations, at least up to the point where it can get people to endorsecoercive laws calculated to reduce assault and worse crimes. In thisway, sober Hobbesianism denies that human beings are necessarilythe playthings of their passions. It also denies that fear – of pain ordeath or punishment – is the only thing that can get people to doright. On the other hand, sober Hobbesianism echoes Hobbes whenit suggests it is rational for citizens to co-operate, and that securityis a non-controversial shared goal, because everyone can agree on thebadness of pain and death. Sober Hobbesianism further insists that theenforcement of law, including penal law, is the appropriate means formaking the state secure.

Where it disagrees with Hobbes is in supposing that citizens candemocratically 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



in the sense of interests generating duties on states and other citi-zens, and that there have to be overriding reasons for these dutiesnot to be fulfilled. In endorsing a democratic form of political orderand normal human rights, sober Hobbesianism is apparently commit-ted to civil liberties – liberties of free speech and association – andwelfare goods – education primarily. Nevertheless, when it comes toemergency, sober Hobbesianism is likely to agree with non-Hobbesianliberals that if the suspension of civil liberties is justified at all, thecircumstances in which suspension makes sense should be identifiablein normal times. There is no commitment in sober Hobbesianism tothe idea that widely distributed inclinations to go to war belong toan eternal normal. Emergency, where it takes the form of war, canbe supposed to be a life-threatening but exceptional result of beliefsand passions that may be historically and geographically specific andshort-lived. Again, the goal of emergency legislation in sober Hobbe-sianism can be to make emergencies as short as possible, permittinga quick return to an old normal, not the construction of a new one.And there can be a presumption in sober Hobbesianism against a pro-longed new normal, since that can in principle be fatal to e.g., thesecurity-enhancing customs of the old normal.

The upshot of the preceding is that, in sober Hobbesianism, leg-islation for emergencies will not be, as it is in Hobbes, legislationfor periods of crisis that are permanently in the offing just below thesurface of social life. Instead, emergency legislation7 will be formu-lated in the absence of imminent threats to life, and will be subjectto standards applied to legislation in normal times, to expectationsof constraints on government action in abnormal times, and to thedesirability of a return to normal times from an emergency situation.8

This does not mean that the criteria for evaluating legislation in sober

7 Legislation rather than a constitutional provision. For the general significanceof the difference, see J. Frerejohn and P. Pasquino, ‘the law of the exception: atypology of emergency powers’ International Journal of Constitutional Law 2(2004) 210–239. See esp. 215f.

8 Sober Hobbesianism thus fits into a rule of law tradition rather than a traditionof unfettered sovereign prerogative. How far the rule of law tradition can copein theory and practice with latitude for government response to emergencies,and with the decisions that have been made by judges post 9/11 is acomplicated question. See D. Dyzenhaus, ‘Schmitt v. Dicey: Are states ofemergency inside or outside the legal order?’ Cadozo Law Review 27 (2005)2005–2039 – also included in The Constitution of Law (Cambridge UniversityPress, 2006), pp. 35ff.

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The old normal, the new normal and the abnormal 153

Hobbesianism are the same as in mainstream liberalism: in soberHobbesianism, all legislation is constrained to promote or be con-sistent with the autonomous pursuit of goals only if security – soberlybut not modestly conceived – is maintained by doing so. But since themechanism for deciding on security measures is democratic detachedjudgement in normal times, the distorting effect of imminence, with itsinvitation 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 internation-ally seem to reveal at least four trends: (1) an increase in public andcovert surveillance in liberal democratic states;9 (2) ad hoc revisionof the law in certain liberal democratic states to limit protections forsuspects in counter-terrorism investigations;10 (3) exploitation by lib-eral democratic state security services of investigatory practices anddetention in illiberal states;11 and (4) opportunistic uses by illiberalstates of counter-terrorism as a pretext for illiberal measures directedat ordinary citizens of those states.12

I shall focus first on (2). It is exemplified by legal measures introducedin the US and the UK to provide for prolonged and even indefinite peri-ods of detention without charge for suspects in counter-terrorism cases.It is also exemplified by the creation ad hoc of special tribunals to trysuch suspects, tribunals operating under unusual rules, and by attemptsto deport foreign counter-terrorist suspects to human rights-abusing,and in particular jus cogens-violating, jurisdictions. Sometimes suchmeasures involve derogations from human rights treaties, as in theUK government derogation from the European Convention of HumanRights (ECHR), Article 5, in November 2001.

9 www.privacyinternational.org/survey/phr2003/threats.htm#Increased%20Communications%20Surveillance%20and%20Search%20and%20Seizure%20Powers

10 Neil Hicks, ‘The impact of counter terror on the promotion and protection ofhuman rights: a global perspective’ in R. Ashby Wilson, ed. R. Ashby Wilson,Human Rights in the ‘War on Terror’ (New York: Cambridge University Press,2005), pp. 216–217.

11 See J. Mayer, ‘Outsourcing torture’ New Yorker 14 February 2005.12 Ashby Wilson, Human Rights in the ‘War on Terror’ (New York: Cambridge

University Press, 2005), p. 215. For a perspective other than an Anglo-American one, see W. Sadurski, ed Political Rights Under Stress in 21st

Century Europe (Oxford University Press, 2006).

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Can (2) be justified? Clearly a liberal justification is difficult orimpossible to mount, particularly when human rights protections, suchas those codified by the ECHR, and the UK counterpart of that Con-vention, the Human Rights Act (1998), have something like the forceof Constitutional provisions. Is it any easier to mount a sober Hobbe-sian defence? That depends on how Hobbesianism bears on ad hocrevisions of the law in general, on whether, in the circumstances inwhich ad hoc revisions are being introduced by the UK and the USA,they are genuine emergency measures, and on whether, even if theyare regarded as emergency measures, they are necessary or sufficientfor preventing a significant loss of life. When these different consider-ations are weighed, I shall suggest, a sober Hobbesian approach is nomore likely to vindicate (2) than a more mainstream liberalism.

It is true that in unreconstructed Hobbesianism the sovereign isabove the law, and able to impose it or repeal it at will.13 Even inthat version of Hobbesianism, however, the sovereign is subject to themoral Law of Equity. As the ultimate judge of right and wrong, thesovereign falls under what Leviathan counts as the eleventh law ofnature:

. . . if a man be trusted to be judge between man and man, it is a precept ofthe 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 inpractice, if he sincerely thinks that his, i.e. the public’s, safety, isimperilled by doing so; the laws of nature only oblige in the sense ofhaving to be given weight in foro interno, i.e., in deliberation beforeit issues in action. It may be overridden if e.g. the agent’s life mightbe lost by abiding by it. The question is whether a breach of thelaw of equity can typically be sincerely thought to be overridden byconsiderations of public safety.

Detention

Many of the revised rules of detention and trial in counterterrorismthat we are considering deal unequally between offenders involved interrorist action and people thought to be involved in highly organized

13 Leviathan, ch. 26, Tuck, ed. p. 184. 14 Tuck, ed. p. 108.



violent crime or successful long-term serial murder. But it is unclearthat the danger to the public posed by these sorts of criminal needbe greater than the danger posed by terrorism, and so it is unclearwhether different methods of detention are necessary, either. Admit-tedly, certain considerations do distinguish the cases, e.g. the greaterlegal difficulty in some terrorist cases of assembling evidence, of expos-ing the identities of witnesses, or of introducing evidence that mightallow terrorists to draw inferences about the sources of evidence; butthese are not considerations that trump a law of nature in unrecon-structed Hobbesianism.

When it comes to sober Hobbesianism, there is no presumptionthat the sovereign is above the law, and no presumption that Equityin Hobbes’s sense fails to apply. On the contrary, the presumptionthat everyone counts for one and no more than one is written intothe exercise of democratic detached judgement that is at the heart ofsober Hobbesianism. From the angle of sober Hobbesianism it mattersthat suspects held for having harmed or murdered or for planning toharm or murder are treated similarly. Departures from equity mightin principle be justified if an imminent threat to life on a significantscale could be counteracted as a result – in short, if the context for thedeparture were an emergency situation. It is not entirely clear that thisis the context for changes to detention rules that we are considering.The fact that wars are emergencies, and that ad hoc counter-terrorismprocedures are routinely represented as belonging to an on-going ‘Waron Terror’ no more establishes that the threshold for emergency hasbeen met than a ‘declaration of war’ against gang crime would jus-tify comparable changes to the detention and interrogation regime forgangs with a record of murder and assault.

Again, the UK government’s counter-terrorism strategy15 contem-plates a long-term effort of challenging the claims of Islamic extremistsamong the UK Islamic community so as to undercut terrorist recruit-ment and radicalization more generally; if this is an emergency mea-sure, it is a necessarily slow-working one, and one that is conductedby persuasion rather than by legislative change.16 Could persuasionover the long term and anti-radicalization by media techniques really

15 http://security.homeoffice.gov.uk/counter-terrorism-strategy/16 ‘Preventing Extremism Together’ Report of Working Groups (August 2005)

www.communities.gov.uk/documents/communities/pdf/152164.pdf



be represented as measures being adopted in an emergency? Beingslow-working, they cannot possibly be effective against an imminentthreat to life. Operating as they do to change minds, they must beassumed to be pitched to people who are not so consumed by fear ordistrust that they cannot be receptive to the relevant messages. In otherwords, the context for this part of the counter-terrorism strategy is notbeing assumed even by the UK government to be a state of emergency.Rather, it is a state of heightened public attention and willingnessto express views in a speech setting subject to familiar liberal rules.Admittedly, the heightened public attention may belong to the after-math of an emergency situation, namely the 7/7 attacks in London in2005 but that emergency situation was not part of a longer emergencythat started in New York in September 2001; it was a short-lived, localemergency situation from which the people affected – perhaps inhab-itants of Central London at most – subsequently returned to normal,or something close to normal.

In claiming that the context for UK counter-terrorism strategy isnot an emergency context, I am not in the least implying that there isno terrorist threat to worry about, or that it does not call for someextraordinary measures. I am claiming rather that it is not an emer-gency context in the sense of the UK being permanently on the verge ofattack. Even the UK authorities concede variations in threat levels, notall of which indicate the high probability of e.g. another 7/7 bombing.I am also claiming that the introduction of extraordinary measuresneeds justification. When extraordinary measures are proposed andordinary measures might be effective, the onus is on a government toshow that those extraordinary measures are necessary for the sake ofpreventing loss of life or other significant harm. I take this to be in thespirit of Hobbes on ‘good’ law. Not only must the new measures benecessary – in the sense that they act on a threat that the ordinary mea-sures do not act on; they must indicate a route from the extraordinaryback to the normal, or indicate a connection between the institutionsfor the normal administration of justice – which command a wideconsensus – and the abnormal.

Extraordinary measures can meet these conditions by being time-limited, and by needing authorization when they are used from thosewho are familiar with legal norms for normal times and capable ofjudging the relative claims of security and liberty in particular cases.Extraordinary measures can also meet these conditions by passing

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through a legislative process in normal times in which the opinions ofsecurity experts and human rights defenders are given a fair hearing.These requirements are met more fully by UK detention and deporta-tion regulations than by e.g. ad hoc provisions in the US for the deten-tion and trial of those once imprisoned at Guantanamo. In the case ofGuantanamo, inmates were taken by the US government to have thestatus of military irregulars and a tribunal regime has been invented forthem mostly under the direction of the Executive branch,17 as opposedto the legislature.18 The Judiciary, what is more, made a series ofobjections to the departures of this invented regime from Constitu-tional protections, ruling in June, 2008 that Guantanamo detaineescould challenge their imprisonment in US courts.19

When it comes to the justification of the ad hoc detention measureswe have been considering, then, we find that there is a fall at the firsthurdle: that of demonstrating their necessity. Where there is clear evi-dence that some of those detained without charge are dangerous, thatcan usually be made material for a criminal prosecution and so for thecustomary detention with charges, in which case detention withoutcharges is unnecessary; where there is no such evidence, on the otherhand, and so no material for prosecution, it is hard to see what evidencefor the need for detention there is, either. Proponents of indefinite orlong detention without charge might have a more intelligible positionif there were great restrictions on legally admissible evidence of thedanger posed by particular terrorist suspects, or great legal restrictionson methods for acquiring such evidence. Then indefinite detentionmight be claimed to be necessary for eliciting, through confession, say,evidence that could not be obtained in any other way. Even so, thecase for departures in counter-terrorism from the normal standards of

17 For a complete survey of counter-terrorism legislation in the US as well asseveral Executive Orders dealing with Guantamo detainees, see the heading‘Domestic Security’ at www.counterterrorismtraining.gov/leg/index.html

18 The passage of the Detainee Treatment Act (2005) introduced protections fordetainees. It contains several loopholes, however. See www.law.harvard.edu/students/orgs/hrj/iss19/suleman.shtml#Heading23

19 For a general discussion of the role judges should have in challenging the adhoc legislation of governments in alleged emergencies, see Dyzenhaus, TheConstitution of Law (Cambridge University Press, 2006). For a diagnosis ofsome 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).



admitting evidence, and normal methods of evidence-gathering, seemsmuch stronger than the case for departures from normal standardsof detention. For one thing, violations of privacy are intuitively lessserious than loss of liberty; for another, so long as surveillance is notindiscriminate and omnipresent, and so long as there are safeguardswhen a prima facie case for its use has been made, surveillance, includ-ing secret surveillance, seems eminently justifiable. Again, so long asthe surveillance comes from sources that someone versed in normalstandards of admissible evidence could regard as reliable, the dangersof 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 landlinesand mobile telephones to logs of calls made, to IP addresses and regis-tered users of email accounts, are available to the police if a ‘necessity’test is passed. This means persuading ‘senior officers of a public author-ity’ that the surveillance is required. National security is one ground forcommunications data surveillance, but there is a wide range of furthergrounds: ranging from ‘public safety’ to tax evasion to an individual’smental or physical health. Surveillance of persons can be ‘directed’or ‘intrusive’. Directed surveillance occurs when suspects are followedand observed in public places by police or intelligence officers. Intru-sive surveillance is where observation occurs in private places: homes,hotel rooms and cars, or where communications are intercepted, usu-ally electronically. Directed surveillance requires warrants from seniorpolice officers. These warrants are time-limited. Intrusive surveillanceis considered necessary only where those observed are suspected ofserious crimes and the seniority of the officers whose authorization isrequired is higher than for directed surveillance. Authorizations of thiskind are in turn reviewed by the Office of Surveillance Commissioners.

Not all surveillance evidence is legally admissible. Evidence fromintercepted communications is not. The UK government has some-times sought to avoid disclosing this evidence by introducing forms ofdetention and restricted movement that can be approved by law offi-cers working under unusual rules. To the extent the inadmissibility of

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



this evidence is cited as a justification for recourse to these new proce-dures, such as those associated with ‘control orders’ under the Preven-tion of Terrorism Act (2005), the inadmissibility rule seems unjustified.Perhaps it deserves to be abolished anyway.21 Though admitting evi-dence from intercepted communications seems to erode the sphere inwhich anyone at all can speak his mind without fear of the conse-quences, the hurdle that has to be crossed for the interception to beauthorized in the first place is not low. Where the benefit of intrudingon unguarded conversation is the prevention of a serious crime, andwhere not being able to admit such evidence contributes to an arbitraryextension of powers of arrest, the badness of intrusion seems heavilyoutweighed.

Not that privacy is of no importance. If that were so, then no hurdleat all would appropriately be put in the way of applying electronicintercepts, and there would indeed be an invitation to nosy officialsto investigate the tax or medical records of people they had grudgesagainst or were simply curious about. Nothing that has emerged sofar justifies the warrantless wire-tapping that has sometimes gone onin the US since 9/11.22 But it is hard to explain or define the value ofprivacy entirely satisfactorily in legal terms,23 and the right to privacysometimes claimed by citizens against the state is hard to reconcile

21 A private member’s bill to make evidence based on intercepts admissible wasintroduced in the House of Lords in the 2006–7 Session of Parliament. For thetext, see www.parliament.the-stationery-office.co.uk/pa/pabills/200607/interception of communications admissibility of evidence.htm

22 ‘Bush Lets U.S. Spy on Callers Without Courts’ New York Times,16 December 2005. www.nytimes.com/2005/12/16/politics/16program.html

23 See Peter Galison and Martha Minow, ‘Our privacy, ourselves in an age oftechnological intrusions’ in Ashby Wilson, Human Rights in the ‘War onTerror’ (New York: Cambridge University Press, 2005), pp. 258–294. It isimportant not to be misled by analogies in this area. The fact that it seems veryundesirable to be viewable naked by others whenever they want to is not aproof that surveillance is highly undesirable, since (i) having one’s dataaccessed does not necessarily expose one very much; (ii) it is never supposed tobe undertaken on someone else’s whim, but for the sake of some importantbenefit. The nakedness analogy is used by Lustgarten and Leigh in In From theCold: National Security and Parliamentary Democracy (Oxford: ClarendonPress, 1994), pp. 39–40. B. Goold argues on the strength of the analogy andon the unpleasantness of having information about one collected without one’sconsent that ‘there is a clear relationship between privacy and the constructionof 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



with their undeniable appetite for journalistic intrusions on the lives ofcelebrities, or voyeuristic reality television. It may also be inconsistentwith the exhibitionism and self-advertisement associated with socialnetworking 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 Chinaof the Cultural Revolution or in East Germany when the Stasi wasat its strongest, the value of a sphere in which the unorthodox orirreverent could be spoken, or in which relationships independent ofpolitics could be cultivated, would have been of the first importance.24

Where public standards of life penetrate even the fine detail of whatone wears, whether one shaves, and what one reads or listens to, thevalue of privacy stands out very clearly. But where practically anythingcan be done publicly without anyone feeling embarrassed or disgusted,matters are not so straightforward. Wanting to do things in private canlook and feel like prudery or evasiveness or snobbery; privacy can beseen as a cost.

In between these extremes a generally valued sphere of privacy stilldoes exist. Virtually everyone thinks that privacy is a requirement ofromantic and family relationships, and such relationships seem to behighly valued universally. So if for no other reason than to protectthese relationships, there should be a presumption against the viola-tion of privacy. That said, it is hard to deny that the value of privacycan be outweighed. A terrorist who reveals his secret plans to hislover may do so in the context of pursuing a private or family lifeto which international law recognizes that he has a right. But if anelectronic bug in his bedroom picks up the conversation in which theplans are revealed and the security services decide that the terroristshould then and there be arrested, so as to disrupt the terrorist oper-ation and prevent loss of life, that seems perfectly justifiable notwith-standing the need in general not to penetrate the sphere of intimate

personal identity. The fact that information collected about me can be falseand unflattering and therefore harmful to me is certainly a reason forsafeguards; but this doesn’t change who I am. Nor does the cultivation by aperson of a self-deceiving self-image determine who he is. Still less does thepiercing of this self-image by unwanted home truths necessarily count ashumiliation. The idea that each person should be able to project the self-imagehe likes best sounds like a spin-doctor’s charter, and not the basis for anargument, as in Goold, that privacy is a human right.

24 Wild Swans; The Lives of Others.

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(London: Harper Collins, 1991); see also the film by Von Donnersmarck (2006)



relationship. The value of life hugely outweighs the value of privacywhen they conflict. For one thing, life is a condition of privacy of allkinds.

Surveys of public opinion – important at least for emergency mea-sures in force in democracies – seem to show that where terrorism isconcerned, even fairly indiscriminate covert access to communicationsand personal data is acceptable to citizens, at any rate in some regionsof the world. A Eurobarometer study of 27000 EU inhabitants pub-lished in February 2008 showed that 82 per cent of those questionedhad no objection to monitoring of personal details connected to tak-ing a flight, and 75 per cent were content to have all their internetusage monitored.25 It is possible that people who worry about vio-lations of privacy and security make it hard for surveyors to contactthem, which skews the results in favour of surveillance.26 But it isalso possible that, in the popular mind, security trumps privacy wherethe two are perceived to conflict, so that laws permitting intrusion incounter-terrorism are legitimate.

I have been concentrating on the UK. In the US, the USA/PatriotAct, introduced shortly after the 9/11 attacks, made it much eas-ier for the government or the security services to access large databases of e.g. internet providers in criminal investigations. Not onlycould data legally be monitored covertly, but there was no require-ment to show that those whom the data concern had committedor would commit a crime. Provisions so sweeping are very hardto show to be necessary, and so they fail even the unreconstructedHobbesian test of ‘good law’. Similarly for the Foreign IntelligenceSurveillance Act (1978) under which warrantless surveillance wenton in the US. The Foreign Intelligence Surveillance Act as amendedin 2008 introduced obstacles similar to those for intrusive surveil-lance in the UK when it comes to approval for electronic surveil-lance of those outside the US communicating with Americans: theelectronic monitoring had to be of people suspected of involvement interrorism. But this seems to be an afterthought, and it comes latein mitigating the effects of a law that is bad even by Hobbesianstandards.

25 http://ec.europa.eu/public opinion/flash/fl 225 sum en.pdf26 K. Haggerty and A. Gazso, ‘The public politics of opinion research on

survellance and privacy’ Surveillance and Society 2 (2/3) 173–180.

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Genuine outweighing of liberty by security

I have been arguing that, so long as they are sufficiently discriminat-ing, certain illiberal measures can straightforwardly be justified by thevalue of security. Discriminating surveillance is a case in point. Butnot every surveillance regime introduced for the sake of security is dis-criminating enough, even when it is introduced by an otherwise fairlyliberal jurisdiction. And even when a surveillance regime is plausiblyclaimed to promote security, that does not mean that every other illib-eral measure that appears to be a security measure is necessary. As wehave seen, an illiberal detention regime or an ad hoc departure from aliberal detention regime can be much harder to justify than a surveil-lance regime, just because liberty is more valuable than privacy, andbecause the protection offered by illiberal detention can fail to savemuch life or prevent much harm in general.

The ‘War on Terror’ may be contrasted with states of more general-ized civil disturbance involving looting and armed violence in a locality.For example, for about 24 hours, starting on 13 July 1977, a power cutin New York City produced a significant emergency.27 Although onlyfour people died as a result of the disturbances that accompanied thepower cut, arson and violent looting took place on a very large scale.More than 1000 fires were set, of which 14 were major: requiring theattendance of crews from many fire stations. More than 40 firefighterswere injured. Nearly 4000 arrests were made. Armed vigilante groupsprotected some property from looters. Acres of Brooklyn propertywere laid waste in fires. Estimates of damage immediately after theblackout started at $150 million in 1977 dollars. Nine million peo-ple were cut off from electricity supplies, and there were many peoplestranded in the New York subway system, as well as some hospitalsclosing to new patients. Communications were badly affected, thoughsome 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 assumedto have eroded, and yet there was no hesitation on the part of thehastily increased numbers of police on patrol to arrest people and evencarry 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



liberal values do not preclude powers of summary detention inresponse to mass criminality, violent criminality in particular.Although many arrests in the black out were made for looting ratherthan threats to life, the scale and suddenness of disturbances were rea-sons to think that a general breakdown of law and order was in theoffing, and therefore that departures from usual liberty-protecting pro-cedures were necessary. Certainly there was no evidence that looterswho were in turn subject to theft were unwilling to stoop to violencein defence of what they were carrying away from shops. Such violencecould easily have become life-threatening. In these circumstances, itis hard to argue that the police response was disproportionate. In theNew York black out case, then, we have a clear example of a situa-tion where arrests on a very large scale were justified, and where theviolation of civil liberties, though some undoubtedly occurred, did notprompt complaints.

There are several important differences between the New York blackout case and the ‘War on Terror’. The black-out was an intense, violentand highly public episode; the ‘War on Terror’ is protracted, not con-tinuously violent, and largely conducted out of public view. Intense,violent and highly public emergencies justify strong police action anddetention more uncontroversially than the ‘War on Terror’: for onething, the imminence of the threat is undisputed and there is a greatpublic appetite for the threat to be met. Where the threat is from covertaction, there is necessarily no public clamour and action is sometimestaken in a precautionary way, before a prospective danger has becomeuncontrollable or a serious offence has taken place. Again, the ‘Waron Terror’ is global, and conducted sometimes by people who areunfamiliar, and out of sympathy, with liberal values. This means thatthe authority of liberal values is not, as it would have been in NewYork in 1977, deeply entrenched. To the extent that the ‘War onTerror’ is directed against terrorist conspiracies, its function is preven-tive, with liberties being violated sometimes before any crime, or anyserious crime, has been committed. In the New York case, the policeresponse was reactive, prompted by compelling evidence of wrong-doing. Far from bringing to bear extreme measures in extreme times,the measures implemented in the New York case appear to have beenproportionate, routine (arrest and detention), though carried out bylarger than normal numbers of police and (when it came to detention)in temporarily very crowded facilities. In the ‘War on Terror’, on the



other hand, some of the means of eliciting information and confessionsatisfy the definition of ‘torture’ in international law.28

These differences have a bearing on the liberal democratic accept-ability of the two sorts of emergency response, that is, the acceptabilityof them from a detached point of view in a non-emergency situation.In the New York case, partly because of the abbreviated time andrelatively small space in which it took place, the only feature of thepolice response that was exceptional was its scale, speed and, at themargins, its cutting relatively minor procedural corners. The crimesprosecuted were already well-recognized; the methods employed werenot those of special police. Counter-terrorism invokes exceptional lawand sometimes employs unidentified agents operating secretly and withexceptional powers. These agents cannot stand in the same relation tothe public as those who also serve in non-emergency situations andwho do so then neither secretly nor with exceptional powers.

In general, emergency measures that take away people’s liberties aremore justifiable the more they resemble the measures taken in the NewYork black out case. The more they are responses to actual violencein which the law-abiding public is caught up and helpless, the morethey keep to the norms of ordinary policing, and the more that theyare taken in public with the support of the public, the more they arelegitimate. This is not to say that legitimate interference with peo-ple’s liberties must always be reactive as opposed to preventive. Thelong established practice of forcibly detaining and isolating carriers ofcontagious disease is clearly justified by the badness of mass illnessand death, but the tests for being a carrier of a contagious diseaseare usually much more conclusive than evidence of someone’s engag-ing in a terrorist conspiracy, let alone evidence for being a terrorist“sleeper” – someone secretly waiting to be called into action in someWestern country e.g. by Al Qaeda. That is why detention as opposedto surveillance of members of suspected terrorist conspiracies is harderto justify than coercive, preventive public health measures. The factthat an illiberal measure is preventive, however, is not a proof of itsbeing 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 areimpermissible even by Hobbesian standards, then torture fails it even moreresoundingly.


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 isdoubtful not only from the point of view of a scheme of values whichsubordinates security to liberty, but also from a sober Hobbesian per-spective in which the appreciation of the value of security is much morevivid than in other liberal theories. Even when security trumps liberty,many of the distinctive measures of the post 9/11 legal regime in the USand UK can be held to be illegitimate. Not that the agreement betweenthe liberal and sober-Hobbesian approaches is total: the support thatsober-Hobbesianism gives in principle for extensive but discriminatingsurveillance is one point of rupture.

There is reason to think that, for lawyers at least, the question ofthe new normal is not a new question.29 There have been many casesover the last 50 years in which emergency powers have been granted togovernments and not relinquished even when the circumstances thatoccasioned 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 humanrights treaties into their laws. Not only do emergency powers rou-tinely outlast the period in which they are introduced; provisions forlegislative oversight or time limits on their being in force are regularlycircumvented. The International Emergency Economic Powers Act of1977 is an American example; the Prevention of Terrorism Act (1974)is a British one. Introduced as a temporary measure in 1974, it wasmade permanent in 1989 (although there has been more recent legisla-tion since 2001). The denial of at least one right to terrorist suspects ininterrogations – the right to silence – has entered mainstream criminallaw in the UK.30

Sometimes legislation intended for a dependent territory of a juris-diction introduces standards that eventually intrude into the homejurisdiction. This is what happened when the Criminal Justice andPublic Order Act (1994) brought to the rest of the UK, provisions thatoriginally were intended only for guerrilla war situation in NorthernIreland.31 Under the Fourth and Fifth French Republics, measures to

29 O. Gross and F. Ni Aolain, Law in Times of Crisis: Emergency Powers inTheory and Practice (Cambridge University Press, 2006), ch. 4.

30 Ibid. p. 186. 31 Ibid. p. 183.



deal with the war in Algeria in the 1950s, including torture, graduallymade their way into the semi-militarized struggle over Algerian issuesbetween Left and Right within France itself.32 Under the Fifth Repub-lic, sweeping emergency powers inspired by the struggle over Algeriastarted 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 ofa state of siege.33

The pattern that has been seen internationally is one of a nor-malization of exception, a broadening of the groups subject to thesemeasures, a weakening or elimination of the conditions under whichthey can be invoked, a narrowing of those involved in invoking thepowers to those in states with executive as opposed to legislativepowers, and an increasing willingness to exercise them in relationto domestic as opposed to foreign security threats.34 What does thistrend show? According to Gross and Ni Aolian, it shows that a dis-tinctive legal category of emergency either does not exist, or, if itdoes, that it cannot depend on sharp distinctions between normaland abnormal, foreign and domestic, us and them, pre-emergencyand post-emergency.35 Perhaps there is no room, then, even in the-ory for an ‘ideal-type emergency’,36 an emergency that is, above all,temporary, and in which powers of pre-existing emergency legisla-tion are invoked and, when the emergency is over, dropped. In anycase, this ideal type is not widely represented in jurisdictions in thereal world, and law geared to the ideal type should be replacedwith new law geared to the typical emergency, Gross and Ni Aoliansay.

I am not sure that I see the force of this line of thought. Whether ornot it is widely represented in reality, the specification of an ideal typecan be part of what is involved in distinguishing ‘so-called emergencies’from those that genuinely justify the invocation of special powers andthe suspension or limitation of liberties. There is no need to embedin the definition of the ideal type the assumption that most or allof the so-called emergencies experienced by people conform to this

32 Ibid. p. 194. 33 Ibid. p. 199. 34 Ibid. pp. 205ff. 35 Ibid. p. 12.36 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.



type.37 There is no need even to concede that every emergency claimedby governments to conform to the ideal type really does so. All oneneed claim is that in emergencies of the ideal type, governments haveparticularly wide latitude for action, both morally and legally. But theideal type of emergency may be one that as a matter of fact rarelyarises, 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 necessarilypermissive.

An important distinguishing feature of genuine emergency of theideal type is the imminence or presence of danger to a whole nationalpopulation. Evidence of a threat on this scale is not easy to invent ormake compelling, particularly where the evidence is open to interna-tional scrutiny. And declarations of emergency as well as the imple-mentation of emergency powers, are open to international oversight,sometimes triggered by applications by states parties to derogate fromarticles of treaties.38 Although treaty bodies play a useful role inreminding the international community of standards that need to bemet if emergency measures are to be introduced, and although theycall for time-limits that would prevent the normalization of emer-gency, international law is in other respects a hindrance to tendentiousdeclarations of emergency. This is because international law insistson the sovereignty of states, on the role of states as the vehicles forthe expression of the right to national self-determination (ICCPR,Article 1), and also on the duties of states to protect their ownpopulations.

These statist and communitarian emphases are reinforced by judi-cial interpretations of human rights law that seem to give discretionto states in practice to be their own judges of the existence or non-existence of a ‘threat to the organized life of a nation’, to allude tothe description of emergency recognized by human rights law. SoberHobbesianism, since it gives less weight to the self-determination ofpeoples than to the self-determination of people, and since it asso-ciates emergency with mass loss of life and injury as opposed to avaguer condition of disorganized national life, is a valuable corrective

37 As Gross and Ni Aolian seem to claim in Law in Times of Crisis: EmergencyPowers in Theory and Practice (Cambridge University Press, 2006), p. 315.

38 The instruments for this oversight are not only treaty bodies: emergencies arealso monitored informally by the international press and by NGOs, not tomention academics in the more liberal of international jurisdictions.



to the thinking behind the human rights treaties. Equally valuable forclarifying what is meant by ‘emergency’ is its emphasis on threats tolife and physical harm. Conditions that count as threats to life andphysical harm are much easier to specify uncontroversially than condi-tions which threaten the ‘the organized life of a nation’. Yet it is theselatter conditions that are referred to in human rights treaties, as weshall now see.

Article 4, paragraph 1, of the International Covenant on Civil andPolitical Rights, says,

1. In time of public emergency which threatens the life of the nation andthe existence of which is officially proclaimed, the States Parties to thepresent Covenant may take measures derogating from their obligationsunder the present Covenant to the extent strictly required by the exigen-cies of the situation, provided that such measures are not inconsistent withtheir other obligations under international law and do not involve discrimi-nation solely on the ground of race, colour, sex, language, religion or socialorigin.

This wording is similar to that of Article 15, paragraph 1, the earlierEuropean Convention on Human Rights:

In time of war or other public emergency threatening the life of the nation anyHigh Contracting Party may take measures derogating from its obligationsunder this Convention to the extent strictly required by the exigencies of thesituation, provided that such measures are not inconsistent with its otherobligations under international law.

European jurisprudence has interpreted the phrase ‘public emergencythreatening the nation’ as meaning ‘an exceptional situation of crisisor emergency which affects the whole population and constitutes athreat to the organised life of the community of which the State iscomposed’.39 But it has accepted as meeting the standard for publicemergencies conflicts that have not affected whole populations. Thusthe former conflict in Northern Ireland was accepted by the Euro-pean Court as a public emergency in the UK, and the conflict involv-ing the Kurds in South-eastern Turkey has been acknowledged as aTurkish 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.



of whether the threshold for emergency had been reached. What ismore, the idea of a rupture or disorganization of national life seemsto invite invocations of emergency in less than life-threatening situ-ations by governments given to extreme nationalism or Schmittiancommunitarianism.

The jurisprudence of the European Convention is not the only guideto the application of human rights law in emergencies. There is alsothe law associated with the ICCPR. Does it improve on the definitionof emergency already encountered?

The treaty body overseeing the ICCPR, the Human Rights Commit-tee, drafted a General Comment (no. 29) on Article 4 a few monthsbefore 9/11 . It was not the first reconsideration of the provision foremergencies in ICCPR. The Siracusa Principles had come at Article4 by way of a general interest in derogations and right-limitations.41

Other studies, such as the Questiaux Report,42 and other formulationsof principles, such as the Paris Minimum Standards,43 had similarlyconsidered ways of restricting states in declaring and time-limitingemergencies and in justifying derogations.

Special Comment No. 29 reminds states parties of the very restrictedinterpretation of ‘emergency’ they may act upon, and the very narrowlimits within which they can derogate from Articles not already speci-fied as non-derogable by other paragraphs of Article 14. On the scopeof the term ‘emergency’, the Special Comment says,

3. Not every disturbance or catastrophe qualifies as a public emergencywhich threatens the life of the nation, as required by article 4, paragraph1. During armed conflict, whether international or non-international, rulesof international humanitarian law become applicable and help, in additionto 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 requiresthat even during an armed conflict measures derogating from the Covenantare allowed only if and to the extent that the situation constitutes a threatto the life of the nation. If States parties consider invoking article 4 inother situations than an armed conflict, they should carefully consider thejustification and why such a measure is necessary and legitimate in thecircumstances. On a number of occasions the Committee has expressedits concern over States parties that appear to have derogated from rights

41 For the details, see Gross and Ni Aolain, pp. 313f.42 Ibid. p. 306 for a discussion. 43 Ibid. p. 310 for details.



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

This interpretation takes armed conflict to be the case par excellenceof emergency. It chimes in with the opening words of ECHR, Arti-cle 15: ‘In time of war or other public emergency threatening thelife of the nation . . . ’, as if war were the paradigm case of publicemergency.

Now as opposed to what else might be included in a list of publicemergencies, war is at least clearly associated with the sharp Hobbe-sian hallmarks of emergency: threat of death and serious injury on alarge scale. There are no wars without lethal weapons directed againstmassed people. What is more, if a war is publicly directed against anational government and is being conducted over a large section ofa territory within the internationally acknowledged borders of a sin-gle country, the connection between war and a disruption to nationallife is amply made out. Of course if the instrument of war against anational government is a relatively small guerrilla army concentratedin a remote corner of a big state, then, notwithstanding the weaponsthat may be used, and the military tactics and military self-descriptionsof those conducting it, the ‘war’ may have the character of a local dis-turbance. It may be closer in the spectrum of emergencies to the NewYork black-out than to the English or American civil wars. It may notbe disruptive enough to disrupt national life, notwithstanding the aspi-rations of those conducting it to disrupt national life. In short, it mayrequire local emergency measures, such as those seized by the Mayorof New York in 1977, but not a declaration of emergency by a stateparty to ICCPR.

By contrast with the permissive understandings of ‘emergency’ evi-dent in the European case law, the interpretation laid down by SpecialComment 29 is restrictive but clear. It discourages tendentious dec-larations of emergency, since evidence of widespread armed conflictwithin a jurisdiction cannot easily be conjured up. Again, by empha-sizing war, Special Comment 29 implies there is something wrongwith armed conflict independent of its disorganizing effect: namely, itsinvolving injury and loss of life. This makes the justification for tak-ing strong action against emergency both morally and legally strong.

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

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There is a strong correspondence between what is clear and anti-permissive in Special Comment 29 and a sober Hobbesian – evenan unreconstructed Hobbesian – understanding of emergency. Spe-cial Comment 29 takes war as the paradigm case of emergency, andso does Hobbes. It states that the measures for dealing with emer-gency should be necessary. It assumes that there is a clear differencebetween war and peace, since in wartime threats to life and threatsof injury are imminent and widespread, while in peacetime they areeither absent or rare. Accordingly, a Hobbesian approach helps todefine the legally necessary distinction between the emergency situa-tion and the pre-emergency situation, helping in turn to define whata return to a pre-emergency situation might be like. For example, itcould be expected to involve the surrender and destruction of weapons,the return to civilian law enforcement, relaxation of movementrestrictions, etc.

I mentioned two major problems with the human rights law sur-rounding emergency. One is its tendency to define emergency too per-missively, which Special Comment 29 addresses; the other is its failureto engage with normalizations of emergency. Here again a Hobbesianframework may help. In unreconstructed Hobbesianism, the idea of apermanent emergency – understood as endless war internal to a state –is unintelligible. Either a war exists, or it does not. If it does, then themany are in mortal peril, in which case they do not get protectionin return for submission, in which case their contract to submit isdissolved. Alternatively, there is no war, in which case no special mea-sures are necessary, and no normalization of those measures can bein prospect. For there to be a long-running general emergency withina state – in the sense of a war affecting a whole population and awhole territory – is an impossibility in an unreconstructed Hobbe-sian framework, since long running general emergencies are dissolu-tions of states or sufficient forfailed states. Either that, or they arepre-political social formations – clumps of live, violent people ratherthan unions or bodies politic. Perhaps a Hobbesian state can con-tain generalized, low-level criminality – not enough to make manypeople fear for their lives, but enough to make a government seizespecial powers of arrest. But this would not come close to meetingthe restrictive definition of emergency, and so would not justify gen-eral emergency powers. To the extent that an internal disturbance canbe normalized it cannot rise to the level of emergency, and to the

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extent that an internal disturbance is a real emergency it cannot benormalized.45

It is important to distinguish between powers for a limited emer-gency (like the New York black-out or Hurricane Katrina, which arerelatively confined geographically and limited in time), and powers fora general emergency like a war with many theatres in a unified terri-tory. If powers for a general emergency are invoked by a government,that can be interpreted as a government response to the high risk ofgeneralized violence or chaos. There are two cases. Either the violenceor chaos is anticipated to be short-lived, in which case time-limitedgeneral powers are in order; or else the violence or chaos is anticipatedto 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 oflong-term emergency powers is prima facie evidence of failure or inca-pacity of the state is plausible on its face, and properly reduces govern-ments that are inept in arresting decline before it reaches crisis-pointto governments in name only.

Of course, in many cases where emergency powers are invoked orextended, they are not always powers for a general emergency, andwhere limited emergency powers are made permanently available toa government, they may not be exercised much. Although there maybe risks attached to the mere availability of powers that are not used,these are not uniformly big risks, because the powers are not uni-formly big. Clearly the most unwanted normalization of emergencypowers is normalization of powers of widest scope, powers suitable towar. These either fail the necessity test or are necessary and promptedby a situation which shows that a government has lost, or is on theverge of losing, de facto power. But the normalization of emergencyin 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 areaconcerning the way that a state or people ‘survives’ an emergency without adeep rupture to its political culture. These issues are central to Honig’scollection, Emergency Politics: Paradox, Law Democracy (PrincetonUniversity Press, 2009). I am out of sympathy with Honig’s general responseto these issues, because it is modelled on Williams’ response to questions abouthow ‘integrity’ is to be maintained in an individual’s response to moralconflicts (cf. pp. 4ff), and I think Williams’ formulations of those questions aredeeply question-begging. See Chapter 3 and T. Sorell, Moral Theory andAnomaly (Oxford: Blackwell, 2000), ch. 2.



another matter. These may be necessary or unnecessary without callingin question the continued existence of the state. If they are unnecessary,they are unjustified. But even if they are necessary, they may not jus-tify the derogations that the paradigm emergency of Special CommentNo. 29 – war – requires. They may deserve to be seen as powers calledfor by a sub-emergency, rather than a crisis in the Article 4 sense of‘emergency’.

When functioning governments unnecessarily invoke wide emer-gency powers, they wrongly invoke powers morally appropriate tocountries at risk of becoming failed states. The concept of the failedstate is essentially the concept of a state experiencing, and powerlessto cope with, a very general emergency. But, to apply the Hobbesianpoint where it applies very well, a ‘failed state’ is no more a state thana dissolved state is a state. A state experiencing but powerless to copewith general emergency is similarly no state at all. The populationthat was once the citizenry of a state, if it is not displaced, loses anysocial contract that once held it together and is held together by, ifanything, tribal or family ties, or, at the limit, the land it continues tooccupy if it is not driven out. The social contract dissolves if for noother reason than that the means of protecting the population fromattack and displacement dissolves. A failed state cannot exercise anypowers it declares it has, including emergency powers. Only a staterelatively far from failure can seize emergency powers in practice, andthe further it is from failure, the less justification it has for invokingthe most sweeping of the emergency powers.

On the other hand, the more robust the state, the more effectiveits exercise of any powers, and the weaker its claim to need the mostsweeping powers. In other words, when we reflect in Hobbes’s way onthe connection between state-failure and all-out emergency, and theconditions under which powers for all-out emergency can justifiablybe seized, we find that there is a very narrow area for justified exerciseby a state of the widest emergency powers. The state must be on atrajectory toward failure but not so close to failure that it is impotentto arrest or stop further decline. Either that, or the state does not face‘emergency’ in the Article 4 sense. In the case of limited emergencypowers, powers which do not purport to head off the collapse of thestate but only to curtail a period of departure from a customary andaccepted normal public life, an even greater distance from state failureis presupposed. But, by the same token, the claim of the measures



to count as ‘emergency’ measures is weaker, as is their claim to benecessary or urgent.

In connecting the purpose of the state with the prevention of majoremergency, Hobbes’s theory makes available a concept – that of thefailed state or of a state that is overcome by emergency – that is increas-ingly being invoked in global geopolitics. Although Hobbes’s conceptof the failed state is essentially that of a state caught up in a civilwar, it has something in common with the wider, more modern con-cept, which connects state-failure with violent conflict as well as otherthings: e.g. corruption, failure to provide public services, displacementof people, and failure to have a presence in international trade anddiplomacy.46 According to Hobbes, states are justified in exercisingany powers that are necessary to prevent their becoming failed states;but, as we have also seen, powers necessary for preventing state fail-ure often fall far short of sweeping emergency powers. It is sometimesbecause states have adopted the wrong everyday policies – wrong poli-cies for taxation, for encouraging employment and trade, and for dis-couraging unsustainable consumption that they put themselves in theposition of having to introduce martial law. The most drastic emer-gency powers only seem necessary when the decline of the state hasbeen so mishandled that it has reached the point of no return. And thedecline does not have to be driven by armed violence. It can descend toarmed violence when armed violence is the response to the failure ofpolicies quite outside the area of security: agricultural management, orheavy-handed slum clearance, or invitations to economic isolation –to name some failed policies that led to the failure or near failure ofthe state of Zimbabwe. In that case, the policies that were necessaryto prevent the failure of the state had nothing to do with the policeor army, but a lot to do with agricultural productivity, internationaldiplomacy 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 protectits 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 aFractured World (New York: Oxford University Press, 2008). See also ForeignPolicy’s Failed State Index 2007: www.foreignpolicy.com/story/cms.php?story id=3865&page=0



exercise regularly the powers characteristically acknowledged to benecessary only in a crisis. States that lack the powers or that allow theiruse to lapse hasten their dissolution. The very first item on Hobbes’slist of those things that weaken a commonwealth is want of absolutepower:

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 unjustact; which disposeth great numbers of men (when occasion is presented) torebel . . .47

Hobbes seems to me to be right to claim that the sudden exercise of adisused power may look arbitrary to people who are accustomed to lifewithout it. He also seems right to say that, if people respond violently tothe appearance of arbitrariness, the state will be even weaker as a result.But it does not follow that the powers of government should normallybe unlimited. It may follow instead that more should be done in normaltimes to make extraordinary powers look less arbitrary whenever theyhave to be invoked, and to make clear in normal times why and in whatcircumstances they would be necessary to invoke. This in turn may bea matter of having democratically enacted emergency legislation, ofinforming the public about emergency legislation in normal times, andof having mechanisms for early warning of risks that would trigger theapplication of this legislation.

Sober Hobbesianism drops the commitment to absolute power whileconceding the point that the ad hoc invocation of emergency powersis, when justified, an admission of weakness. Sober Hobbesianismis not permissive in its definition of emergency and it connects thenormalization of emergency powers with reason for dissolving thesocial contract. Although it does not have a liberal abhorrence ofthe ad hoc seizure of emergency powers, and of ad hoc extensionsto the periods when emergency powers are in force, it does have anabhorrence of these things all the same.

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

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