The Once and Forever State of Emergency

and Why SOE Should be Abolished

The Once and Forever State of Emergency

“Do what thou wilt shall be the whole of the Law.”
Aleister Crowley

“Sovereign is he who decides on the exception.”
Carl Schmitt

Informed by the data emerging as early as March 2020 from the Diamond Princess, I previously argued that it was known the virus presented no existential threat to any nation, including the floating island nation of the Diamond Princess itself, a nation in the sense of its inclusion amongst other nations proper on “worldometer”. The lessons from the Princess could be interpreted in light of the Syracusa Principles on the Limitation and Derogation of Civil and Political (i.e. human) Rights in States of Emergency.

Despite obvious and trivial acknowledgement that each nations laws differ, a recurring turn of phrase used throughout the Syracusa principles sets the criteria towards limiting human rights as “…a threat to the life of a nation”.  

Based on these premises…

Major; the virus presented no existential threat

and

Minor; only an existential threat grants warrant to limit human rights  

Must surely follow…

Conclusion; human rights of the citizenry of the nations that joined signature at Syracusa were abused this past 30+ months.

Notwithstanding Syracusa had not been “domesticated” into Australian law (a lawyer can correct me if I’m wrong), there is the question as to why bother signing something without any intention of honoring it, or at least without formally renouncing it afterwards and making clear the signature is a token behind an excuse to holiday in Italy. 

Given abuses of human rights occurred despite multiple heroic challenges appealing to law and the democratic process in multiple states without remedy or justice being even remotely attained, it is appropriate to ask ourselves why we did not recourse to that contained in the final page of the Syracusa principles (of 1985), a reminder to what had been set down almost 40 years prior (in 1948).  

“It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law. — United Nations Universal Declaration of Human Rights, 1948”

It is telling that this quote is included in Syracusa on the back page following the citations and list of directors. Bar a small price for copy at the bottom “price $2.00 U.S. / 5 SW. FR. / £1 U.K.”, the quote sits all alone on an unnumbered page, this akin to an additional scene one might see of a film after the credits have rolled. Such a potent quote can only be separated as salt from the sugar beforehand. Or perhaps as a preview to a sequel that will be screened sometime in the current century if our strife deepens. Nonetheless the quote is what it is.  

Is it not then by the grace of a peaceful citizenry that serious counterforce was not applied this past 2+ years? If truth be known, the pacifism was part product of propaganda and partly resulting from devitalising moral forces that might have driven an uprising in times past. The same psychological programming leading to the apologetic prefacing “I’m not a (covid) antivaxxer but….” and “I’m not a conspiracy theorist but….” likewise leads to “I’m not inciting or warning about violence but…….”.  Likewise in turn, the same peace and democracy that spreads across the globe leaving blood and wrecked nations in its wake, this same democracy has become a psychological trigger word to disempower any moral licence to dissent against any elected government. Regardless of what is done to citizen or citizenry, the programming would have it that this is notionally the general will via the democratic process. The facts are that dissidents are often enemies of oligarchy. The sentiment and psychological programming is messaged that the dissident is the enemy of the people against the ostensive democratic state. Sentiment and psychological programming wins out every time. Once religion was alleged to be the opiate of the masses, now democracy takes its place amongst the pharmacopeia of narcotics including faith in the managerial elite, the march to omni-safety and so on. 

The radical step I want to take here is not to say that a state of emergency or state of exception (SOE) was misapplied on this occasion. No rather the challenge at hand is to convince that calling a SOE is itself an abuse on any occasion, an abuse only remedied by its abolition. It accompanies an equally radical plea that we wind back on ethical argument by appeal to data ( Why We Lost Before We Started. (substack.com) )

A history of its use of SOE should raise alarm bells. Everywhere democracy, proto democracy or other liberalist utopias enters the stage, the use of SOE is sure to follow. Such was the case in France from the beginning of the revolution. Write a constitution one day and find a way to suspend out of necessity the next. In a sense France or its colonies have been doing revolutions against revolution every few years to the present day, the law catching up with what each Napoleon wishes to do as post hoc rationalizations for desires outside the law. Germany fared no better. The Great War was a SOE for all. Post war civil strife triggered many a SOE. Devaluation of the currency, the inter war rise of the socialisms and many other reasons besides, the Reich used article 48 and its predecessor to declare a SOE over 200 times before Hitler ever took power. With his passing, it was not long before the new republic faced the protests of the 60’s and fired up the ovens of SOE all over again. In England and its Anglo speaking colonies, SOE were embedded in an absence of any opposition to expansion of state powers in ostensive times of crisis. One worker protesting was a crime. A group could constitute a state of emergency. In the United States, Lincoln transcended the constitution and invoked a SOE, and not simply to emancipate the slaves. Freedom of speech was suspended by Wilson under a SOE and Roosevelt became dictator over liberty in order to invoke the metaphor of war and wage it against the depression. And on it goes to interred Japanese Americans and 9/11 and the never ending wars of the current century. The above doesn’t begin to exhaust the list of examples in each of the above mentioned nations, let alone all the others. Nothing really changed across the world in 2020. When the virus came it was just another war to fight and just another reason to trample over liberty for surface reasons of necessity and real reasons of oligarchic control. 

Why does history not raise alarm bells despite such an abysmal record? It cannot be mere historical ignorance. If it were, yours truly would also be included in ignorance until months ago, though my alarm bells were ringing since February 2020. Perhaps the theological sentiment becomes political. Now we live in secular times we still long for a miracle, some dramatic event about which we can say “but this time is different” and from which we can be set on a different path and see the world anew. Perhaps compliant indifference follows from a general trend towards infantalization, which is to say relating to the state as the parent object which can and must save us from all threats and a want not to grow up and be real adults in the world. Or perhaps it’s in the way SOE is often defined and sold, as a moral (even patriotic) necessity required to protect the rights and welfare of the state itself. Yes lets crush the citizens to protect the citizenry. Who are we as cells of the superorganism to question such a motive, this despite rights applying only to persons and not abstractions of persons or superimpositions upon non persons. We might say a company sold us something. Not so. Only a person can sell us something. We might say a mass can go insane. Not so as a mass lacks a mind only an individual can possess (see my article The Cloth and the Code - Robert Against The Machine (substack.com). Contra even a better interpretation of Syracusa, a nation cannot ever really live in order for its “life” to be threatened, though I’ll grant it can live in the minds of its people and its landscape can be scarred in times of war and natural disaster. Or perhaps the problem lay in a fallacy of the locus of agency, as in a bushfire caused a SOE when a bushfire can only burn objects and lives, and a SOE must be declared by a human in power with a motive for declaring it (to enhance control). The question arises why a SOE must be declared at all. Cannot people decide on the obvious of exceptional circumstances in natural disasters all by themselves? Do we not know the danger of being bombed?   

Or perhaps the answer lay in assumptions we have as to the relationship of SOE to what is taken to be the normal rule of law and democracy. Key assumptions may be derived from the false comfort in believing SOE is a rare departure from the norm whilst being controlled and contained within the norm. This is incoherent. Neccesitas legum non habet (Necessity has no law). It makes little sense to say that a political leadership or unelected managerial elite can say “I am putting law into a cage to preserve until the emergency resolves” and in the same breadth say “but I am answerable to law”. This is not like Schrodingers cat, the leader cannot be both in the cage and outside it at the same time. A leader can however give the appearance of being rule bound by simply making up new laws or extending the application of the old beyond reasonable (though not positivistic) measure. And when the consent factory of the masses begins losing productivity, some punishment afforded by violent policing the SOE will keep it going, with extra injections of propaganda of course. Whether it’s a riot in Paris where a 12 day statutory limit on a SOE is allowed persist for 3 months or a Queensland Covid SOE where the 3 month statutory limit is simply extended again and again and again beyond any objective threat at all, the SOE gives the answer away as to the nature of power in the liberal democratic state. The answer is ontological and epistemological both as knowledge points to what is the case. The leader was never really controlled and a SOE is merely pretense, a ritual necessary in an apparent liberal democracy when normal law and democracy becomes inconvenient to the task. Power is never contained. Realizing this is when the horror really begins. 

If you don’t believe me maybe some analogies will help the grasping. Imagine the typical case of post war PTSD. The body and mind are responding often as if perpetually in the war, this despite the war possibly coming to a close decades ago. Yet the body and mind are also responding to a collision course with radical truth. The psychotherapist might counsel correctly that most of the world is safe most of the time. In all probability the patient will never encounter a criterion A event threatening life and limb again. Nonetheless this belies the fact that the war reveals the world in its potentiality as an inherently dangerous place. Truly successful therapy must honestly reconcile not merely with the past as past, but also what the past reveals about what is in the present. The experience did not change the world. It revealed it.

Same is the case with the politics of domestic violence, another model for understanding SOE. Therapists frequently hear that the offending partner became a different person leading up to the occasion of violence. Just as frequently the therapist is told that the occasion of violence revealed the partner for being who they were all along and not who the victim thought they were. Now we might say that the spousal relationship is one between equals where, (unlike democracy), none is necessarily appointed or elected the sovereign over all. But that is not the point. The point is that the fist once fallen is in its potentiality forever raised and poised to fall again. In its potentiality it always is. Where innocence and ignorance was before the event, now we have not merely an epistemic reorientation towards what is, we have an ontological re-orientation also. We have the fact of this potentiality revealing the true nature of power. The objection that domestic violence is arbitrary whereas the state works within a regulated rule based system also would miss the point. Perpetrators of domestic violence often appeal to some rationale akin to law, just as do heads of state when calling a SOE. Victims of domestic violence often introject the perpetrators rules also as the discipline they believe they deserved or required. Still the power imbalance is revealed as real and its use to be arbitrary.

As Schmidt said, “sovereign is he who decides on the exception”. That is to say, the true identity, nature and boundaries of government, governance and power resides in who can call a SOE, how long they can maintain it and what they can do (hint; its NOT you who has the power to decide!). The true nature of power is revealed in the reality that the normal is the exception and the exception is the norm. And so both dissolve into one another and all is what the leviathan says it is to be because potentiality is omnipresent. Times of relative normality are not times when leviathan lacks the power do to what it wishes. These are the fantasies of democracy and rule of law. These are the times when leviathan lacks the desire to do what it always can if it wishes. Yesterday it might have been a war or a minor internal uprising or currency instability or other financial crisis. All can be invoked to call a state of emergency. Recently it has been a far from existentially threatening virus. Tomorrow it may be more wars, rumors of wars, more viruses, cyber attacks, weather events, “climate change”, protests against technocracy or even epidemics of dangerous ideas. The list of notional attributions is limited only by the imagination of the tyrant and his/her/their/zer nudge units. The fact that SOE might account for a small fraction of time changes nothing to an understanding of power. If I once exercised power under SOE to take your liberty for a single minute in a year, then each of the 525,600 minutes of your year is mine to decide, not yours to be free. Next year I might take all of them.  

Power is law and law is decisionist. The source of power is in those specific elites whom we see successfully wield it, people of flesh and blood complete with propagandists and organs of violent consequentialism to dissent. It makes very little difference what or if anything is written into positivist law about which the dissident might say “but this is unlawful”. All the possible states of emergency and their borders cannot be contained in words and besides, leviathan can always say “but this time is different”, difference being the very nature of exception. Propagandised people will agree “yes this time is different” and the media will fire the cannons of emergency and necessity day and night for weeks. Even if a member of the judiciary somehow manages not to be captured in the orbit of believing propaganda, they will not rock the boat when the whole weight of the machine of SOE bears down upon them.  They will merely echo “this time is different. Its war against a deadly virus don’t you know”. That was why I (very much a non lawyer) predicted legal challenges would fail unless and until the weight was displaced for other reasons.       

What of prevention against next time, as there will be a next time? The remedy must be to lobby for the abolition of states of emergency/exception of any kind. Naturally this is impossible because power cannot be contained and always flows upwards towards those who can do what they wilt and can only be stopped by violence. But we could go a long way by abolishing within law the potential to declare it under any circumstance and to criminalize the act of declaring it, to make clear there is no stepping outside whilst claiming to be inside. We could also work towards lifting the veil to a cynical reckoning with the nature and use of SOE, inculcating in the culture a sense of SOE as dangerous and growing confidence that the people are perfectly able to organically respond to genuine emergencies as required.