Authority after Emergency Rule

Date01 July 2015
AuthorJonathan White
DOIhttp://doi.org/10.1111/1468-2230.12130
Published date01 July 2015
Authority after Emergency Rule
Jonathan White*
In the context of economic crisis, Europe has witnessed a spate of extraordinary political measures
pressed by executive discretion. This article examines what emergency rule of this kind implies
for the possibility of normal rule thereafter. Political decision-makers face the challenge of
drawing a line under the crisis so that the unconventional measures used to handle it do not
compromise the polity’s norms in lasting fashion. Based on an analysis of the preconditions for
plausibly making such an act of separation, I suggest the principal resources for doing so in the EU
case are missing. Emergency rule will tend to blend in with normal rule, to the detriment of the
political order’s legitimate authority. A more dubiously grounded ‘descriptive’ authority may
conversely be enhanced by emergency rule, as may compliance for instrumental motivations,
producing a polity that is stable even if weakly legitimate.
Faced with what they designate an emergency, political executives are apt to take
extraordinary measures. These include the suspension or overriding of selected
norms, and the exploitation of the freedom this affords to set up new kinds of
governing arrangement. An interesting and politically significant problem con-
cerns what the legacy of such manoeuvres is likely to be. What is the effect of
executive discretion under the heading of emergency for the later authority of
the political community’s norms?1
The question is valid for any polity’s experience with emergency rule. The
case that inspires the present paper concerns the EU’s response to the Euro crisis
beginning in 2010.2Emergency politics has been a central component here in
the political handling of socio-economic disturbance. Decision-makers have
repeatedly invoked conditions of crisis to justify significant displays of executive
*Associate Professor (Reader) in European Politics, London School of Economics and Political
Science. For comments on a draft, I am very grateful to Chris Bickerton, Achim Hurrelmann, Jan
Komárek, Christian Kreuder-Sonnen, Liz Monaghan, Bill Scheuerman, Frank Wendler, Mike
Wilkinson and Lea Ypi; two anonymous reviewers and audiences in Washington DC, Prague,
Cambridge and Hull gave valuable additional input. The article was completed during a fellowship at
the Wissenschaftskolleg zu Berlin, supported by the EURIAS programme.
1 A classical understanding of discretion is offered by Locke when outlining executive prerogative,
ie as action ‘without the prescription of law, and sometimes even against it’ (J. Locke, Two Treatises
of Government P. Laslett (ed) (Cambridge: CUP, 1988) II 160). In this article I understand
discretion analogously but in relation to the wider concept of norms (see below), allowing
observation of the impact of emergency politics on widely-accepted standards of appropriate
conduct which may or may not be codified in positive law, yet which are nonetheless crucial for
the legitimacy of political rule.
2 For an analysis of the succession of events commonly called the ‘Euro crisis’, and of the political
stakes in these definitional questions, see A. J. Menéndez, ‘The Existential Crisis of the European
Union’ (2013) 14 German Law Journal 453.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(4) MLR 585–610
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
discretion.3One has seen interstate conditional loans apparently ruled out by
treaty commitments employed to satisfy investors and reshape national econo-
mies, supported by derogations from such norms of representative democracy as
the unhurried parliamentary scrutiny of legislative proposals and the legitimate
mobilisation of dissenting opinion. Unconventional procedures have been used
to set up policy regimes that are substantially new: steps, initially outside the EU
framework, towards the ever-closer monitoring of national budgets, along with
major innovations in the policy-making of the European Central Bank (ECB),
are just some of the salient examples. Exceptionalism and improvisation have
been widespread – and not always easy to distinguish, as purportedly temporary
measures acquire a lingering quality. All such measures have been rationalised as
necessary responses to exceptional and urgent threats.4Despite some peculiarities
we shall examine, the EU experience displays many of the features typical of
contemporary emergency politics, being extended in time, transnational in
reach, and addressed to socio-economic affairs rather than matters of security
traditionally understood.
In the article’s first section I specify the problem. I look at some of the
fundamental norms challenged in the course of the Euro crisis, and set this in the
context of the general contribution of norms to legitimate political authority. To
fulfil this contribution, I suggest, they must be generally regarded as binding. The
practices of emergency rule challenge their binding character. Significant in this
regard is not just the level of exceptionalism that has been displayed in the Euro
crisis but also its visibility. Executives and commentators alike have acknowl-
edged it – a function one must assume of its distinctly economic basis – with the
result that retrospective denial is difficult. This poses with full force the question
of exceptionalism’s political legacy.
The second section examines the possibility that the problem is contained:
that what emerges from a period of emergency politics is a set of norms of
enduring credibility. Such an outcome would hang on a successful act of closure:
a line is drawn under the crisis period, such that the extraordinary measures taken
do not contaminate the institutional regime that ensues. By a successful act of
partitioning, emergency rule is prevented from casting lingering doubt on the
regularity of what follows. While this may be a widely held goal, the analysis
3 See C. Joerges, ‘Law and politics in Europe’s crisis: On the history of the impact of an unfortunate
configuration’ (2014) 21 Constellations, 249; C. Joerges, ‘Europe’s economic constitution in crisis
and the emergence of a new constitutional constellation’ in J. E. Fossum and A. J. Menéndez, The
European Union in Crises or the European Union as Crises? ARENA Report No 2/14 (Oslo: ARENA,
2014) esp 12 ff; C. Kreuder-Sonnen and B. Zangl, ‘Which post-Westphalia? International organi-
zations between constitutionalism and authoritarianism’ European Journal of International Relations
(forthcoming); D. Curtin, ‘Challenging Executive Dominance in European Democracy’ (2014)
77 Modern Law Review 1; K. Dyson, ‘Sworn to Grim Necessity? Imperfections of European
Economic Governance, Normative Political Theory, and Supreme Emergency’ (2013) 35 Journal
of European Integration 207; H. Brunkhorst, Das doppelte Gesicht Europas. Zwischen Kapitalismus und
Demokratie (Frankfurt/Main: Suhrkamp, 2014); J. White, ‘Emergency Europe’ (2015) 63 Political
Studies 300–318.
4 Note that ‘emergency’ as used here describes a mode of rule, not the circumstances in which it
is exercised. There is a risk one takes at face value the objective existence of an emergency
whenever one speaks of emergency rule: to avoid this, I refrain from using ‘emergency’ when
referring to objective conditions (using alternatives such as ‘crisis’ where appropriate).
Authority After Emergency Rule
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
586 (2015) 78(4) MLR 585–610

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