Mazin Zeki on human rights
States of Exception by Costas Douzinas published by Edward Elgar
Democracies are defined by the separation of powers and rule of law, as well as custom and unwritten conventions. This work, born of the pandemic, marshals the evidence that suspending law is becoming the norm in democracies, building on and diverging from Georgio Agamben, who argued that the suspension of democratic norms had become routine since WW1. Executives have assumed legislative powers and quasi-judicial jurisdiction. Even Germany, with its constitutional court with overriding powers, did not stop this. Elsewhere, a written constitution/constitutional court made no substantial difference.
Douzinas, in synthesising Marx and Foucault, has a track record of infuriating observers on left and right. What he describes is how this scenario, using different terms and justifications is normalised in democracies. The term “state of exception” was coined in 1922 by legal theorist Carl Schmitt, who was later a pro-Nazi ideologue. The Weimar constitution was never repealed. The Enabling Act of 1933 was a “temporary four-year suspension to combat “Bolshevik terror”. Within weeks the first concentration camps for opponents were set up. But the term and variants have been used since by democracies; “state of exception” now replaced by the more acceptable “necessity”.
Law must deliver what it promises, or its neutrality is revealed as a delusion and ideological ruse. Human rights legitimated the dominance of global neo-liberalism with a political economy based on austerity and security. Human rights were used to resist public demands; the accumulation of theoretical rights has not helped the disenfranchised. The Left’s abandonment of critique is emphasized. All aspects of the rule of law have been weakened except police powers, repression, and surveillance. The state has expanded in tandem with corporate power and its technological managerial elite. The Taylorisation and digitalisation of everyday life have also strengthened this process.
All governments would ride roughshod over normative and peremptory norms if they could get away with it. Douzinas, a former Greek MP with legislative experience, sketches this tendency which is justified on terror threat, exceptional circumstances/public health priority Covid, financial crisis, unprecedented emergency, left with no choice, a black hole.
Fundamental rights are breached without any constitutional/legal remedy being possible. COVID is only the most recent and widespread example because it affected everybody. But increasingly, laws are being deliberately circumvented except at an empty symbolic level. Regulatory processes are also weakening. But it is Western democracies where this is accelerating among avowed champions of human rights. As Agemben argued, human rights far from guaranteeing citizens expose them to more state sovereignty and violence. Terror legislation is being used routinely to detain/prosecute, and imprison for non-terror offences. Police officers are calling for more such use against rioters and others. Interestingly, after Southport, few if any have actually been charged with rioting.
Douzinas has previously written on the stagnation of human rights when they become instrumentalised by sectional interests. Human rights have become not a utopia but a method of transcending the political process to achieve specific goals. But Douzinas argues that rights can also be used to breach rather than protect fundamental freedoms, increasing the trend for law without actual legislation. “Hate crimes” fall into this category. Prevent anti-terror initiatives have received referrals about those who are gender-critical. Upholding rights or an abuse of law?
Many pandemic restrictions, fines and prosecutions, and other actions of officialdom were based not on law but guidance. During Covid, opposition parties and related groups demanded tighter restrictions “to protect the public” with little in the way of evidence. This was ostensibly their method of leading public opinion at a time of national crisis. Many human rights groups were silent.
Douzinas denounces this failure and liberal/left acquiescence as a naive belief in rights which can only be protected by active collective political action and resistance and alliance-building. As crises deepen, there are vociferous demands for exceptions, including by non-state actors. This is of very serious concern to all those who want to protect liberties, in fact, not just in slogans. It will leave consequences that will have to be faced and opposed. How will progressive opinion respond to the next pandemic or climate change? In fact, Extinction Rebellion protestors, in implicitly advocating emergency measures, may be inadvertently demanding a “state of exception”. A citizen’s assembly would not necessarily lend it more legitimacy.
This polemical, articulate, and important work presents highly complex and compelling arguments that require a thorough knowledge of political theory. It poses serious and urgent challenges for progressives who must collectively develop a coherent response. Not a reliance on “norms” and slogans. It may be a fateful choice between short utilitarian equality versus democracy, which took centuries to achieve. It can easily be eroded.