Seven years ago (recall) I discussed the quoted passage on this blog, and then eventually published a paper on the material (here). Today, I revisit it because of an extraordinarily fertile book (published in 2009), States of Emergency in Liberal Democracies by Nomi Claire Lazar, which I recently read and had overlooked before. Lazar offers what she calls a 'Lockean' approach to states of emergency amply documented in Locke's Second Treatise, but developed and elaborated by her in very creative ways.
Now, the key move of Lazar's Lockean approach is to insist that states of emergency need not abolish accountability (of the sovereign, the executive, the dictator). In the right sort of political order, accountability is "an ever-present possibility." (p. 149) And one of the neatest chapters in her book shows that this is even so in the case of the institution of Roman dictatorship (made famous (recall) by Livy in his treatment of Cincinnatus). Such accountability can be formal in a political and juridical sense. Or it can be more informal by way of the political restraints of countervailing powers and forces, including public opinion.
That during states of emergencies accountability need not be abolished builds on another key insight of hers: that there is no sharp division between states of emergency and the ordinary rule of law. In particular, first, in both instances rights derogation occur, but the manner in which this happens is different. In fact, her book reminds the reader that even in the most noble liberal democracies, many of our rights can be derogated within the ordinary rule of law (as rights clash or in instances of ordinary punishment). This is recognized in treaties and constitutions that set an explicit limit on which rights can be derogated (see p. 145). Second, these rights derogations reflect the ordinary pluralism, even "pervasive" conflict of values in ordinary political life (p. 89).
And, third, office holders have considerable discretion not just in cases understood as emergencies, but also in ordinary political life. As Locke notes in his "Of Prerogative," which, as noted, is important to Lazar's overall argument, "many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require." (Second Treatise, Chapter 14, sect 159; quoted by Lazar on p. 116). The cumulative effect of these three points is that states of emergency are part and parcel of what Locke (and Foucault) call the 'art of government.' If Lazar is right -- and she is -- then states of emergency also belong to a distinctly liberal art of government.
However, there is also a complication. And I introduce it by way of Locke. Locke goes on to claim that this discretion is in the service of "public good and advantage" in the context of circumstances "that as much as may be, all the members of the society are to be preserved...for the end of government being the preservation of all." It is notable that Locke puts this not in terms of the survival of society (the effect of, or instituted by, the social contract), but rather in terms of the preservation of "all" the individuals (the "members") that compose society. On Locke's view, the prerogative, thus, really is in the service of the preservation of (individual) life rather than, say, the preservation of the state. (This makes sense because for Locke, unlike Hobbes, we can survive just fine outside society and the state.)
The claim in the previous paragraph nicely illustrates Lazar's point that "emergency powers take on the moral character of the end they serve." (p. 138) In Locke, then, the prerogative and the powers it licenses are means toward serving the interests of individuals. Admittedly, Locke often treats this in terms of serving the "public good" -- which is more expansive than mere individual survival --, so I don't mean to suggest that for Locke emergency powers ought only focus on preservation of bare life. But for Locke the proper functioning prerogative is in the service of the same values as those that justify the social contract. And in so far as we can treat these as liberal -- some will object here to my anachronism here -- for Locke emergency powers can be liberal.
The point of my last two paragraphs is to note that Lazar goes beyond Locke in an important way . To be sure, Locke anticipates, as she notes, her claim that public opinion is an important check on the use of prerogative. But rather (and this gets me to the complication), for Lazar, emergency powers are invoked when "the state order through which norms and laws are normally enforced is threatened, the order itself is threatened." (p. 103) As she recognizes the preservation of such order is not self-evidently a liberal value. In her account this is not a bug, but a feature. Because for her, 'extra-liberal values' are also "pervasive" in "the moral life of liberal democracies." (P. 93) She includes "security, order, desert, group cohesion, cultural pluralism, and the preservation and expression of cultural heritage" among the list of pervasive non liberal values, and the source of pervasive pluralism and conflict of values in liberal democracies.
And the way Lazar handles this conflict -- and this puts her in the camp of political realists -- is to distinguish between the "quotidian ethics animating the day-to-day functions of political order" which are constituted by "liberal values" and the "existential ethics" that govern the foundation and preservation of the liberal democratic order (p. 88; see also p. 12). And such existential ethics "are characterized by their relative uniformity across regime types." (24) So, for Lazar, the ordinary liberal art of government always involves navigating extra liberal values. And this is, we might say, intensified and more noticeable during states of emergency where the existential ethics that guide the preservation of order may be more important.
In a way, Lazar meets contemporary critics of liberalism, often inspired by Schmitt on their own ground (recall this post on Agamben). These tend to insist that the state of emergency is always (and hypocritically) lurking in liberal practice. And such critics have had ample ammunition during the last (say) fifteen years with the ways in which central banks operated during the great financial recession, the ways in which France (and other countries) have tackled Islamic terrorism, and the ways in which the Pandemic has been governed. Lazar shows that the critics are not wholly wrong in calling attention to the phenomenon, but they misunderstand the significance of it.
As an aside, I take the positing of two such ethics as characteristic of what is now known as political realism, which insists that political life has norms of its own and, if the state is worth having, ought to be governed by them. (For a an important recent paper on this, see Matt Sleat here, which nicely refutes the idea that such political norms must be non-moral a view he associates with my colleague Enzo Rossi.) And Lazar's slender work (but fertile in ideas) ought to have a place in the developing canon of recent political realism.*
Be that as may, as should be clear from what I said above I do not think Locke is committed to such bifurcation between quotidian ethics and existential ethics. Because for Locke the state of nature is livable, the preservation of order is always instrumental to the grounds of (entering) civil society.
Having said that, Lazar's view does characterize Hume's position nicely. (For recent work on Hume as such a political realist, see Andrew Sabl's book (here), and my paper.) As the quoted passage above makes clear, in his ideal constitutional order, Hume made place for provisions of states of emergency. That order -- it is a federation -- is modeled (and Hume is explicit on this) on Dutch political arrangements improved in light of experience. And, in fact, Hume's construction quite clearly addresses a weakness in the Dutch political order that Hume has diagnosed in his History. That in foreign policy affairs its decision-making process could be too slow and so too vulnerable to foreign influence:
The articles of this confederacy [viz. the defensive alliance between England Holland negotiated by Temple and De Witt] were soon adjusted by such candid and able negotiators: But the greatest difficulty still remained. By the constitution of the republic, all the towns in all the provinces must give their consent to every alliance; and besides that this formality could not be dispatched in less than two months, it was justly to be dreaded, that the influence of France would obstruct the passing of the treaty in some of the smaller cities. D’Estrades, the French ambassador, a man of abilities, hearing of the league, which was on the carpet, treated it lightly; “Six weeks hence,” said he, “we shall speak to it.” To obviate this difficulty, de Wit had the courage, for the public good, to break through the laws in so fundamental an article; and by his authority, he prevailed with the States General at once to sign and ratify the league: Though they acknowledged,13th Jan. that, if that measure should displease their constituents, they risqued their heads by this irregularity. [Emphasis added]
The emphasized part in the quoted passage nicely illustrates one of Lazar's key points that even in an emergency, a political leader is aware of the reality of accountability and acts accordingly.+
In larger context, Hume presents De Witt as acting for the survival of the Dutch republic which is threatened by (their former ally) France which has just overrun Flanders. And so the alliance with England is negotiated (while England and Holland are still at war with each other!) in order to save "the remaining provinces of the Low Countries could be thereby saved from the danger, with which they were at present threatened." And it is clear that for Hume the survival of the state, the continued existence of order (and property), "the public good" justifies the means. While Hume rejects the social contract, he is in this respect closer to Hobbes than to Locke (as I have argued in a paper with Spencer Pack here).
That, for Hume, non-liberal values can guide the art of government is illustrated by Hume's praise for the De Witt (earlier in the 1665 war with England) "by his management a spirit of union was preserved in all the provinces." This shows that for Hume the conditions that maintain the survival of the state -- this includes among them such a public spirit -- are, indeed, part of the non-liberal art of government. So, I'd like to suggest that Hume (who I am here treating as a key thinker in the liberal tradition) is the historical figure that anticipates Lazar's position.
*I am not without criticism of her work. Her argument is developed by way of an epistemological contrast within liberalism between those that hew closely to Kantian synthetic a priori moral propositions and a Lockean, empiricist and more inductive stance (see especially chapter 3). But, while I am personally sympathetic to her Lockean stance, the contemporary Kantian will work with the method of reflective equilibrium--something she ignores entirely. And that method is much more empirical and inductive than she attributes to the contemporary Kantian. (Strikingly, she treats Nozick as the exemplary contemporary neo-Kantian (pp. 54-57.)
+I had missed this before.
I'm going to sound like a broken record here after the lengthy exchange on Twitter last weekend, but I can't resist noting this small point: (i) Sleat doesn't refute the view that political norms must be nonmoral, he shows (correctly) that most realists don't hold it. (ii) He also (wrongly) says that nonmoral normativity must be distinctly political (a mistake he imports from Leader-Maynard and Worsnip's paper). Whereas I other radical realists use epistemic normativity, others use prudential normativity, others a combination, etc.
Posted by: Enzo Rossi | 02/14/2022 at 11:06 AM
Hi Enzo,
Fair enough. But on (i) in virtue of showing that most realists don't hold the view that political normativity must be non-moral, he shows it's not required by political realism on a natural self-understanding. Nobody has argued, I think, that such a realist is or has to be inconsistent on this point. On (ii) I agree with you that there are other kinds of normativity. And that one could go as you go with with epistemic and prudential normativity. In fact, (iii) what makes Lazar's book so important, I think is that she shows that these other kinds of normativity themselves are among the sources of value conflict in ordinary political life. And so, it's not just radicals or anti-liberals who might wish to make this point. Of course, (iv) she also claims that there is non-liberal moral normativity that is also a source of such conflict which as far as I can tell is distinctive of her view.
Posted by: ERIC SCHLIESSER | 02/14/2022 at 11:23 AM
That all seems about right.
Posted by: Enzo Rossi | 02/15/2022 at 06:47 PM