The Rule of Law and its Discontents: Giorgio Agamben, and the state of exception from below

The Rule of Law and its Discontents: Giorgio Agamben, and the state of exception from below Christopher May, Professor of Political Economy, Lancaster University, UK Antigone: ... Who put in place for men such laws as yours. Nor did I think your proclamation so strong That you, a mortal, could overrule the laws Of the gods, that are unwritten and unfailing. Sophocles (2003) Antigone, translated by Reginald Gibbons and Charles Segal Oxford: Oxford University Press, lines 498-501. At the centre of discussions of (global) constitutionalism is the founding notion of the rule of law, in that to propose a constitutional settlement to the problem of political order (global or national) is to rely on the rule of law as an operative principle. However, much of the recent debate about the rule of law has focussed on the global war on terror to argue that the law is not applied or followed when states’ governments decide it constrains their (necessary) actions. This has led many to adopt, as descriptive of our times, the notion of the ‘state of exception’; that, in the famous words of Carl Schmitt: ‘Sovereign is he who decides on the exception’ (Schmitt 1934 [1988]: 5). This notion of exception, as further developed by Georgio Agamben, is presented as a critique of the claims that the rule of law is a central element of contemporary politics, suggesting that this claim is merely a mask for the manifestation of power. In this article I challenge this line of argument, and argue that civil disobedience as a political practice complements and helps illuminate states’ utilisation of exception as part of the normal practices of the rule of law. I would like to thank Patrick Bishop, Martin Loughlin, Suzanne Ost, David Seymour and (especially) Graham Smith who offered comments and suggestions on an earlier draft. Two referees for Global Constitutionalism also made a number of very helpful suggestions as regards the shape of the analysis. All greatly improved the argument herein, but the remaining shortcomings are of course my own. If both practices are processes of testing the boundaries of the legal, then we can usefully recognise each as a way by which the rule of law is amended and adapted over time and as such can reaffirm that constitutionalism can be grounded on the rule of law even if at times parts of this ground seem about to give way. To be clear, this argument does not indicate that therefore actions by the state and by protestors are necessarily of the same political magnitude in any specific instance, but rather they must be understood as different aspects of a single political practice: the amendment by challenge of the rule of law. Therefore, what this article seeks to demonstrate is that the ‘state of exception’ is a category error: despite the terminology the (so called) state of exception is actually part of the normal politics of the rule of law. The notion of the category error (or ‘category-mistake’) was set out by Gilbert Ryle (1949) and was intended to capture a set of philosophical mistakes which stem from allocating specific concepts to one logical type when they should be allocated for purposes of understanding to another. While the subject here is an issue of political analysis, the identification of a similar form of error usefully sums up my starting point. To make my argument, I begin by discussing how we might understand the general claim that the rule of law is to be preferred to its absence. Given the role that Agamben’s work has played in recent discussions of the state of exception, next I summarise his critique of the rule of law and set out the main elements that are relevant to a comparison with civil disobedience. I then explore the question of civil disobedience and examine where there are parallel considerations which help illuminate the relationship between these two political processes. I conclude that in both cases particular values, that are perceived as more important than those articulated through the formal mechanisms of law, confront claims to legality and through this confrontation the politics of law prompts either constitutional/legislative amendment or a more robust defence of the status quo. Thus, the ‘exception’ and civil disobedience each contribute to the ongoing development of the rule of law and not its destruction; they are maintenance activities not processes of demolition. This is salient beyond what is normally seen as a national politics of civil disobedience; if there is a global democratic deficit in the global constitutional order (Peters 2009), then how does this order legitimately recognise pressures for change that lie outside the mechanisms of international legislative deliberation? The solution that has been developed in national legal systems (as described below) for the state seeking to deal with crises and the (self-perceived) disenfranchised to challenge and amend the law’s impact, indicate that there can be legitimate and already established mechanisms for a global constitution to deal with social change in advance of a global representative democracy. The Rule of Law: between consistency and justice In the last two decades the idea of, and the term the ‘rule of law’ has progressively become more widely used. As Pietro Costa and Danilo Zolo point out: today ‘the expression the “rule of law” is remarkably widespread, not only in political and legal literature but, most notably, in newspapers and political language’ (Costa and Zolo 2007: ix). The late, and distinguished UK senior judge Lord Bingham also noted that the rule of law is ‘constantly on people's lips’ (Bingham, 2010: vii), while worrying that it is not well understood, even as it is deployed in political discussion and debate. See my discussion of his book on the rule of law in May (2011). However, while the importance of abiding by the rule of law has significant political currency, Sir Francis Jacobs, Advocate General of the European Court of Justice from 1988-2006, has concluded that: there is no universal agreement about what [the rule of law] means. Nor is there agreement about how it can be reconciled with other, competing values: notably with the requirements of democratic government, [although] the rule of law embodies certain values which seem at least in Europe, widely accepted as essential to modern social and political life (Jacobs 2007: 7-8). Indeed it has become a commonplace, in debates about governance, government, and constitutionalism, that although the rhetoric of the rule of law is common, it remains remarkably indeterminate; it is frequently evoked on both sides of an argument, and understanding varies between cultures or political systems. Therefore it should be no surprise that there is an enormous jurisprudential literature exploring the manner in which the rule of law might be defined, See for instance: Bingham (2010); Costa & Zolo (2007); Dyzenhaus (1999); Heckman et al (2010); Humphreys (2010); Mattei & Nader (2008); Palombella & Walker (2009); Shapiro (1994); and Tamanaha (2004). and that definition continues to be difficult partly because there is a lack of differentiation in the English word ‘law’ between the concepts, elsewhere distinguished by different words: ‘law as legislative will and Law (capitalised) as right reason’ (Fletcher 1996: 35). Indeed, English commentary on law seems to have often cultivated an ambiguity between what Germans would call Gesetz - the law as laid down, its formal rules - and Recht, which encompasses some claim to an ethical value (Fletcher 1996: 13). Likewise, the French distinguish loi and droit, the Dutch between wet and recht, and the Finns between laki and oikeus, to give three further (but still European) examples. I am grateful to Jan Klabbers for this point. However, rather than reporting on these continuing debates, here I will follow Paul Kahn’s suggestion that the rule of law is a social practice: it is a way of being in the world. To live under the rule of law is to maintain a set of beliefs about the self and community, time and space, authority and representation. It is to understand the actions of others and the possible actions of the self as expressions of these beliefs. Without these beliefs, the rule of law appears as just another form of coercive governmental authority (Kahn 1999: 36). Crucially, for the argument I wish to make here it is the differences in practice between the rule of law and its absence that are most important. Certainly, there are major jurisprudential debates about the reach and content of the rule of law, but much of the contemporary political debate is concerned with the practice of the rule of law, and its purported absence in specific instances, that have been the focus of particular attention. With a practice-based starting point and drawing on Brian Tamanaha’s synthesis (2004: chapter 9), there are three broadly consensual elements to the rule of law as practice: Government is limited by law; governments (and state apparatus) work within the law as would any other organisation. While states’ clearly have a legitimate ability to amend, change and propose laws, this is done through a process that is itself internal to the legal system. This theme has often been identified as the desire by societies to restrain tyranny, and is likely the oldest aspect of the rule of law; for instance, the Athenian Constitution celebrated by Aristotle in the fifth century BC, was largely concerned with ensuring the safe-guarding of the citizens from the power of the city state (Cohen 1995: 52-57). Formal legality; the rule of law offers a predictable and largely settled guide to (legal) behaviour. This may also include issues such as due process and equality of application (all are bound by the law equally), as well as being publically accessible (not secret). Terry Nardin argues that the rule of law should only refer to those systems which encompass ‘an association of moral equals’ and which protect the ‘moral rights of all’ (Nardin 2008: 397). Furthermore, for Nardin: ‘If law is not a relationship between independent agents, collective or individual, if its presumption is not the independence - the freedom from unwarranted coercive interference - of those agents, there is nothing to distinguish law from power’ (Nardin 2008: 401). Formal equality must underpin predictability; I do not need to know my ‘station’ or ‘position in society’ to know how the law applies to my actions. The rule of law not men; legal rules are separate from the immediate personalities of those concerned with enforcing them, although given the continual need to interpret laws in specific cases, the question of the role of judges and adjudication always needs to be addressed. For judges to be suitably disinterested they are usually regarded as a specialist set of public servants, but at the moment of application all laws become subject to the discretion of the court and as such there is always the danger that the rule of law becomes the rule of judges. However, as Bingham puts it: ‘No discretion may be legally unfettered’ (Bingham 2010:54). The latitude of discretion must be circumscribed by the law, and not left to those in administrative or government roles. Despite the clear difficulties of settling even these three themes as definitive of the rule of law, they represent the central aspects that are often appealed to in popular debates about the rule of law (in national and international political realms) and hence for our purposes here they set out the crucial elements of the social practice(s) of the law. In his discussion of humanitarian intervention, Thomas Franck (2002: 175) suggests that the central paradox which the rule of law always confronts is the tension between consistency and justice. As noted above, one important aspect of the rule of law is to confirm that laws are being applied consistently without favour or partiality. However, where the slavish practice of law-following produces socially unwelcome consequences, then Frank argues that the law’s ability to ‘pull towards compliance those to whom it is addressed depends first and foremost on the public perception of its fairness’ (Franck 2002: 177). Therefore: When the law permits or even requires behaviour that is widely held to be unfair, immoral or unjust, it is not only persons but also the law that suffers. So, too, if law prohibits that which is widely believed to be just and moral. Consequently, it is the law’s self-interest to serve the bridging function... [and it] does not thrive when its implementation produces redectio ad absurdum: when it grossly offends most peoples’ common moral sense of what is right. This insight is relevant to all law, whether international or domestic (Franck 2002: 178, emphasis in original). This suggests that the practice of the law must include some mechanism by which it may be altered in response to social changes and popular morality. In democracies this would normally be through the legislature – for both the state and the population – and in normal circumstances this would suffice. However, as explored in the following two sections it is not always the case that the state can deal with crises without acting outside the law as settled, nor that certain groups perceive at certain times that intra-legislative political mobilisation can be effective. The State of Exception (Civil Disobedience from above) Since the turn of the new millennium the argument that the rule of law is fatally undermined by the ability of the state to decree a ‘state of exception’ has become relatively common. We are told that states have sought to sidestep some aspects of domestic and/or international law in the ‘war on terror’ and have (partly) suspended certain aspects of the rule of law either for all or in relation to certain groups (see for instance: Chandler 2008; De Goede 2008; Huysmans 2008; Ralph 2009). In this commentary Giorgio Agamben’s analysis is widely cited and has become increasingly influential, and thus although, the intellectual origins of the ‘state of exception’ lie further back in the history of political theory, here I concentrate on his position and its relation to the rule of law. For a discussion of Agamben’s use of Carl Schmitt’s analysis and the differences between their concepts of the exception, see Huysmans (2008). While the nexus of sovereignty, the state of exception and ‘bare life’ is crucial to the overall development of Agamben’s work, I will limit my consideration to what he believes the state of exception tells us about the justification or otherwise of the rule of law, not least as this more limited remit reflects how his work is frequently deployed outside political theory. In Agamben’s discussion of the testimonies of survivors of Auschwitz, he notes that it was the ‘extreme situation’ of the concentration camp that drew his attention to the manner in which the state of exception and the ‘normal situation’ ‘secretly institute each other’, and ‘as soon as they show their complicity, as happens more and more often today, they illuminate each other, so to speak’ (Agamben 1999: 49-50). Indeed, much of his work on the state of exception is intended to illuminate the fissures in the normal situation of currently existing liberalism as the dominant normative position in national and international/global politics. For Agamben, the state of exception, which is to say the force of law deployed outside the law, is part of the liberal state’s mechanisms of self-perpetuation, and therefore while force and law can be distinguished, the legitimation of force is impossible without law. I am grateful to Graham Smith for this formulation. In Agamben’s analysis this legitimization is affected by the manner in which the rule of law itself constitutes the exception (Mills 2008: 62). The rule is defined by its exclusion – it’s other – and thus; ‘Law is made of nothing but what it manages to capture inside itself through the inclusive exclusion of the exceptio; it nourishes itself on this exception and is a dead letter without it’ (Agamben 1998: 27). The exception is not marginal to rule but rather this political decision (the existence of the exception) is central to liberal politics: ‘The rule applies to the exception in no longer applying, in withdrawing from it. The state of exception is thus not the chaos that precedes order but rather the situation that results from its suspension’ (Agamben 1998: 18, emphasis in original). The exception and the rule of law are co-constitutive of each other, the former leaving an indelible ‘trace’ in the latter, and therefore the exception is central to contemporary politics, albeit a politics fatally compromised by the state of exception itself. This reveals a ‘zone of indifference’ between the rule of law and its absence, indicating that the distinction between inside and outside the law is blurred, and not as stark as might be imagined. Agamben suggests: The state of exception is thus not so much a spatiotemporal suspension as a complex topographical figure in which not only the exception and the rule but also the state of nature and law, outside and inside, pass through one another. It is precisely this topological zone of indistinction, which had to remain hidden from the eyes of justice, that we must try to fix under our gaze (Agamben 1998: 37). Here, the binaries legal/illegal or subject-to/not-subject-to the law fail to fully apprehend the situation; ‘the zone of anomie that [the state of exception] establishes is not (or at least claims not to be) unrelated to the juridical order’ (Agamben 2005: 23). The state of exception is ‘the opening of a fictitious lacuna in the order for the purpose of safeguarding the existence of norm [of law] and its applicability to the normal situation’ (Agamben 2005: 31). Agamben sees the danger in this situation of tyranny masquerading as liberalism. The exception acts to confuse acts of executive power with acts of legislative power, and produces a space where the force of law is deployed in a way that does not accord with the law (Agamben 2005: 39). However, as Agamben also argues: As long as the state of exception is distinguished from the normal case, the dialectic between the violence that posits law and the violence that preserves it is not truly broken, and the sovereign decision even appears simply as the medium in which the passage from one to the other takes place... the link between violence and law is maintained, even at the point of their indistinction (Agamben 1998: 64-65). The state, as carrier of authority from the establishing pre-legal act, and its power to maintain the law through the constitution, remain linked even under the exception. It is only when it is impossible to distinguish these two positions that the corruption of the political is complete. For Agamben, this situation now exists: the state of exception has today reached its maximum worldwide deployment. The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that – while ignoring international law externally and producing a permanent state of exception internally – nevertheless claims to be applying the law (Agamben 2005: 87). However, as I note below, it is not clear how he is able to make such a judgement; he seems to provide no way to distinguish between the exception as a ratchet, an irreversible political development and the exception as a prompt to corrective political response(s) that subsequently curtails and reigns in the exception. Certainly, the always existing potential for the state of exception to obtain serves to reveal the distinction between the norm (rule of law) and its application (government), and by doing so allows government to be undertaken (Agamben 2005: 36; Zartaloudis 2010: 135-136). The exception is a condition of the law’s application, but for Agamben, this space devoid of law seems for some reason, to be so essential to the juridical order that it must seek in every way to assure itself a relation with it, as if in order to ground itself the juridical order necessarily had to maintain itself in relation with an anomie. On the one hand, the juridical void at issue in the state of exception seems absolutely unthinkable for the law; on the other, this unthinkable thing nevertheless has a decisive strategic relevance for the juridical order and must not be allowed to slip away at any cost (Agamben 2005: 51). The importance of the exception has hitherto been masked by legal attempts to define the exception as constituted by its particular relation to the legal, rather than by its revelation of sovereign power’s ability to maintain a realm of anomie. Interestingly for my argument here, in State of Exception Agamben explicitly notes the link between the (posited) state of exception and a (political) right to resistance. Although only mentioned in passing, Agamben suggests that ‘in both the right of resistance and the state of exception, what is ultimately at issue is the question of the juridical significance of the sphere of action that itself is extrajuridical’ (Agamben 2005: 11). However, the failure to develop an account of the space for, and role of, political resistance opens up a major difficulty for his attempt to understand contemporary politics; rather than analyse the relationship between the exception and (political) resistance, he merely returns to a focus on the exception as a top-down political potentiality. Contra Agamben; if the state of exception is seen as the manner in which the state ensures its survival by maintaining a mechanism through which the exceptional threat can receive a prompt response, then this can be encompassed within an account of legitimate liberal politics. The state of exception can be seen as merely an extension of the legitimate droit politique – political right; the trust we put in government to ensure the orderly and secure continuance of the state in general (Loughlin 2010: 228-237; 401-402). This leads Fluer Johns to argue that the camp at Guantánamo Bay is the ‘jurisdictional outcome of exhaustive attempts to domesticate the political possibilities occasioned by the experience of exceptionalism – that is, of operating under circumstances not pre-codified by pre-existing norms’ (Johns 2005: 615, emphasis in original). The thrust of the situation has been to normalise the camp’s legal existence, albeit through novel (legal) means, to render it not exceptional by establishing its legal place. Considerable effort was expended by the protagonists to understand the place of, and practices at, Guantánamo as within an interpretation of the law (Johns 2005; Sands 2008). That this attempt is palpably incomplete tells us that maintaining an exception is hard (political) work and not merely dependent on the assertion of sovereignty. It is true that the state and its legal institutions always have the ability to apply discretion and while an emergency may prompt the assertion of the exception more widely (or with less oversight). However, this is not necessarily fatal to the rule of law as it will, by virtue of the character of exceptions, remain temporary (Dyzenhaus 2006: 60-62; see also Kadish & Kadish 1973 [2010]: chapter 2). Oren Gross and Fionnuala Ní Aoláin refer to such actions as ‘extra-legal measures’ which are undertaken with specific ends in mind, and cannot be prosecuted with impunity. They argue that: for such an action to be appropriate it must be aimed at the advancement of the public good and must be openly, candidly, and fully disclosed to the public. Once disclosed, it is then up to the people to decide, either directly or indirectly (e.g. through their representatives) how to respond to extra-legal action (Gross and Aoláin 2006: 112). There may be political mobilisation (protests, media agitation, legal challenges) protesting the unacceptability of the actions, or there may be acquiescence. While the state of exception might prompt disquiet, it may also be accepted as a legitimate political response. However, as Andrew Norris points out, Agamben seems to want to ‘have it both ways’: If the Bush-Cheney administration [which Agamben criticises] is simply providing the sovereign decisions that are metaphysically necessary to maintain public order in the United States, one cannot fault it for acting tyrannically. Conversely, if it is indeed acting tyrannically, this is something that requires not metaphysical analysis and political theology, but practical, political resistance and institutional change (Norris 2007: 45). If we see the assertion of the exception in the latter manner, certainly resistance may be suppressed leading to a failure to remain a liberal state in the eyes of those disturbed by the assertion of exception, but without an invocation of the potential for such resistance, the assertion of tyranny remains empty. Unfortunately, any practical political response is problematic methodologically for Agamben. See also the discussion of Guantánamo Bay and Agamben’s analysis in Johns (2005) which runs parallel to that developed here. Given his acknowledgement that the example can only be revealed by the exception – the manner in which Agamben identifies the camps of the holocaust as exemplary of rule – this identification is accomplished by assertion, as by Agamben’s own account, since the example precedes and defines the rule, [he] cannot appeal to an independent rule or standard to justify his claim that the camps are exemplary of anything. The determination that the camp is representative of the rule is one that is made and not in any substantive sense recognised (Norris 2005: 275, emphasis in original). Thus, Agamben’s method fails to link the exception to a political or deliberative process against which it might be contrasted. In the specific case of resistance, this may be because Agamben sees the popular sovereignty that might be the root of resistance as having been ‘progressively emptied of any sense’ (Agamben 2010). Indeed, given the repeated assertion of optimism about the ability of non-political processes to deliver us from the current juncture it is exactly this notion of practical politics that he rejects (Prozorov 2010). Agamben’s future hope is for a time ‘after the law’ and a situation where (following Walter Benjamin) there is ‘good that absolutely cannot be appropriated or made juridical’ (Agamben 2005: 64). While for Agamben, the state of exception so corrupts the political that we no longer have anything to lose from complete withdrawal, we can (should?) ‘prefer not to’ engage (Whyte 2009), the difficulty is that if we do think the state is acting tyrannically, a refusal to engage politically does not undermine the state so much as allow it to continue undaunted. Indeed, as Jeff Huysmans argues, Agamben’s analysis of the exception has no place for the category that has been central to the modern democratic tradition: the political significance of people as a multiplicity of social relations that condition politics and that are constituted by the mediations of various forms and processes... [it] erases from the concept of politics a rich and constitutive history of socio-political struggles, traditions of thought linked to these histories, and key sites and temporalities of politics as well as the central processes through which individualised bodily resistances gain their socio-political significance (Huysmans 2008: 177). By depoliticising politics, by suggesting the individual refusal is all that is possible, Agamben marginalises and obscures a political history and its accompanying justifications/theorisation that is an essential and continuing component of contemporary democratic political practice. However, one way to retain Agamben’s identification of the crucial role of the exception is to enquire into its wider (contextualised) political character; does his analysis capture the political importance of the exception in its entirety? In the next section I seek to characterise civil disobedience as a parallel process of challenge to the rule of law. This will lead me to suggest that the act of asserting the state of exception is a form of state-practiced civil disobedience. By understanding it in this way, the state of exception can be seen both as normal politics and also less absolute, in that it represents not a final political act, but rather a testing of the boundaries of legitimate action at times of political stress. Indeed, as there are significant and well tested reasons to see civil disobedience as a legitimate political process for political discontents, state actions (gathered together under the notion of the state of exception) can be returned to a sphere of legitimate political processes and rendered non-anomalous, albeit of a different scale to analytically similar forms of bottom-up resistance. Civil Disobedience (The state of exception from below) I am going to use a relatively narrow definition of civil disobedience; where it is focussed on changing the law, and its justification is based on either appeal to a higher law (natural law, justice or some other politico-legal value), or by utilitarian arguments of the greater or common good in the cause of amending laws themselves. See Acton (1956 [1969]) for a discussion of these various forms of justification. The argument that recognising any justification for civil disobedience may sap the strength of the law more generally is not without its adherents, see Singer (1974: part one), for an examination of this position but at least public (and symbolic) illegality is usually regarded as exhibiting a political character, even if private illegality less easily so characterised. The question of the ‘quality of opinion’ may also be important (Arendt 1973: 62): who are those conducting civil disobedience, and can they be safely ignored or not? There might be some shading here of course: the robbing of banks might be taken by extreme anti-capitalists to be civil disobedience (to fund their righteous activity) rather than merely criminal, although it is unlikely the police or courts would agree. Likewise, private refusal to pay taxes may indicate disobedience related to governmental spending policy, although again such judgment may depend on the character of those refusing to pay, and the manner in which such refusal is articulated. A principled refusal to pay tax is (politically) not the same as tax evasion; the intent is different, even if the actions are similar. Leaving aside these potential grey areas, I will follow John Brenkman’s useful characterisation: civil disobedience is ‘a temporary, disciplined crossing of the boundary of lawfulness for the purpose of achieving something on behalf of the rule of law, that cannot, in the judgment of those taking action, be accomplished by merely obeying the law’ (Brenkman 2007: 75, fn23, emphasis in original). This is a common trope of opposition movements: formal legal rules may need to be broken or ignored, to serve a different conception of legality; a universal legality can be served by particular illegality. The justification of politically focussed illegality however can never be finally settled and thus codified: there can be no legal right to civil disobedience as this is itself renders civil disobediences non-disobedient (Raz 1979 [1991]: 168). Civil disobedience is always exceptional in legal terms even when seen as an acceptable mode of making a political point. There is a significant debate about a moral right of civil disobedience, with the question of the form of regime in which disobedience is acted playing a major role in differentiating the legitimacy of such a right – see the overview in Brownlee (2009: section 3). Here as I am more interested in the role civil disobedience plays vis-a-vis the rule of law, I leave this issue to one side and merely follow Dworkin’s argument (see next paragraph). Although there can be no legal right to civil disobedience, Ronald Dworkin has suggested that most commentators on legal affairs accept to various degrees the notion that while we have a moral duty to obey and follow the law, ‘this duty cannot be an absolute duty, because even a society that is in principle just may produce unjust laws and policies, and a man has duties other than his duties to the state’ (Dworkin 1978: 186). Individuals may hold beliefs as regards an acceptable morality that are contradicted by specific laws, and where personal (in Dworkin’s term: ‘honest’) convictions are strongly held, there is a recognition that people may act on these beliefs but face the (legal) consequences. However, a confusion arises when the word ‘right’ is introduced: in its strong sense, a right to act on these convictions would imply that the state does not have a right to halt such actions (where they are driven by honestly held convictions); conversely, in its sense of ‘right’ as acceptable or correct, we might conclude that while the state is right to prosecute the illegality, the individual is right to draw public attention to the contradiction between law and their strongly held moral position (Dworkin 1978: 190). This issue may be easier to resolve where formal constitutions are in place, as an appeal to a particular interpretation of ‘fundamental rights’ encapsulated by a general legal document (a Bill of Rights for instance) is a key aspect of breaking the law in support of the wider rule of law (Dworkin 1978: chapter eight). Where there is no bill of rights or formal constitution any wider conception of the moral content of the rule of law may be subject to some disagreement. That said, the Human Rights Act (1998) in the UK has made the argument that such principles are a key element of the rule of law much easier in British politics (as the European Convention has done so across the European Union) (Bingham 2010: chapter seven), and has ensured that any appeal to such principles is considerably easier to maintain as a defence for action. This suggests two questions: firstly what over-riding moral rights might be regarded as an acceptable basis for civil disobedience?; and secondly once the law has been broken how does the state decide between recognising illegality as a prompt to re-examine the particular law(s) subject to such political actions, and merely dismissing such actions as criminal? A constitution may help resolve the first question, but more generally human rights and wider (or substantive) definitions of the requirements of the rule of law are often appealed to when formal law and moral-political convictions are in tension. For instance, the justification for some acts of civil disobedience involves an appeal to the ‘Nuremberg principles’. Under article 6 of the London Charter, through which the notion of war crimes was introduced into international law, and enacted at Nuremberg in the first instance, individuals as well as policy makers are held responsible for the planning and waging of war in contravention of international treaties or law more generally (Cohan 2007: 166). Here civil disobedience may break local laws, but in the service of preventing the contravention of international laws, or the commission of an international crime by the companies or groups their actions target. If not always successful as a defence of actions, this appeal can serve a communicative end, and acts to identify a lack of alignment with the rule of law by the organisation(s) or state(s) concerned. What is a reasonable justification for civil disobedience, and what is not, may change over time and between groups; while religious conviction was seen as an acceptable reason for civil disobedience in the past, with the increasing secularisation of many societies, such justification is not now so readily nor widely accepted, although appeals to faith have revived in the new millennium. Attitudes may shift over time; indeed social attitudes are often affected by the civil disobedience campaign itself (key examples being the anti-slavery campaign, and the US civil rights movement). Such campaigns are often intended to both protest an unjust law and to build a socially accepted position that the state and/or government must respond to. Kimberley Brownlee argues that ‘civil disobedience actually can seem most justifiable when the situation appears hopeless and when the government refuses to listen to conventional forms of communication’ (Brownlee 2009: section 2:1). Therefore, one of the most powerful justifications for civil disobedience is social communication, which seeks to draw the maximum publicity to a particular social problem, not least as illegal actions have news value in a competitive news environment. Civil disobedience also communicates the commitment and strength of political opinion of those who are involved and directs the government qua audience to the changes in the law required to ameliorate the problem so identified (Brownlee 2007). This commitment is, of course, also indicated by the willingness of participants to pay the price for acting illegally; from assault to imprisonment. In many campaigns the role of the legal system has been used in a sort of jujitsu politics, where its weight bearing down on the committed activist is often depicted as unreasonable and disproportionate as a way of seeking further support for the campaign. When civil disobedience becomes widespread, the state will need to consider whether the specific law still reflects the mores of society and whether enforcement continues to garner societal support. Conversely where prohibitions are regarded as being for the social good, even if popular views offer little support, governments may ask whether the specific (collective) social good is still worth the time and expense of enforcement; successive campaigns by organised ramblers are an interesting example of establishing a shift in the manner in which a key legal right can be exercised (here a right to property). When civil disobedience is only carried out by a small number and there is adjudged to be little support, a state (and its government) is likely to prosecute on the basis of criminality. Indeed, it is difficult to coherently account for civil disobedience as anything other than a collective action (Arendt 1973: 45-47); individual acts, even if prompted by political concerns, are only politically coherent if part of a collective action (which would include individual actions as part of a campaign). Furthermore, for subsequent civil disobedience to be regarded as legitimate in a democratic society, Peter Singer argues there must have been a prior, and ongoing, legal political campaign (Singer 1974: 84); previous channels of democratic deliberation and influence must be seen to have failed for political reasons (not merely because the cause was extensively aired and gained little support). However this is a dynamic issue: civil disobedience and its prosecution may lead to changing social attitudes which in themselves may both encourage expanded civil disobedience and shifts in courts’ attitudes to the ‘crimes’ and eventually lead to amendments of legislation. This process (which is far from unusual) may see a progression from prosecution of vocal individuals, to leniency of sentencing (adjudication accepting political mitigation), See Brownlee (2007) for a discussion of the justification of the legal punishment of civil disobedience. to calls for legal change through the actions of larger groups, and finally legislatures accepting democratic pressure to change the law. For Hannah Arendt this process indicates that civil disobedience should be institutionalised and its authors given access to the centres of legislative power (Arendt 1973; Smith 2010). This may be one logical conclusion to the law-building role accorded here to civil disobedience, but it would serve to remove the distinction between legal and non-legal protest. This would likely lead to the emergence of groups that were not recognised as legitimate in Arendt’s institutionalised order of disobedience, and who would then still find themselves protesting what they saw as legitimate concerns outside the law. See Hakimi (2007: 684) for a similar argument as regards ‘tolerated deviations’ from international law. This also parallels the distinction that Agamben draws between ‘orders that regulate the state of exception in the text of the constitution or by law and those that prefer not to regulate the problem explicitly’ (Agamben 2005: 9/10). In the former group he finds France and Germany; in the latter, Italy, Switzerland, the UK and the USA. Space precludes an exploration of this constitutional issue, but for the purposes of the argument herein the following definition remains helpful: civil disobedience is a particular illegality to promote a more universal legality through communicative collective action. For Dworkin particularly, the crucial arguments about civil disobedience rest on the question of political conscience; law-abiding citizens still need to consider the strengths and weaknesses of the legal system as regards their own political beliefs. Where they have reasonable grounds for doubting the validity of a law on moral grounds (judged against some system of values) they are at liberty to disobey. Where their actions are followed and supported then this is part of ‘the development and testing of the law through experimentation by citizens and through the adversary process’ (Dworkin 1978: 216-217). As Catherine Valcke puts it: civil disobedience is ‘part of a collective lawmaking enterprise... [through which] laws are enacted by the officials as tentative statements of morality and/or efficiency and turned over to the citizens for their approval’ (Valcke 1994: 58). This presents law making as a social iterative process in which civil disobedience serves to identify the limits of the (legitimate) rule of law. Thus, noting the particular US history of civil disobedience, civil disobedience can reflect a failure of judicial review in specific circumstances to realign the law with socially accepted views of morality (Arendt 1973: 81/82). Assessing the influence of Gandhi, Tolstoy, Thoreau, King and others There is a cannon of writings on civil disobedience that is frequently anthologised: see Bedau (1991) and Murphy (1971) for representative examples, where the authors assessed by Bleiker are given pride of place. on the politics of dissent, Roland Bleiker argues that they helped shift ‘foci from individual to collective action and from rejecting society to engaging with it’ (Bleiker 2000: 95). Civil disobedience is not the rejection of any society and its rule of law; rather it is an engagement with such a society with the explicit intent of improvement or progress towards a better (fairer) rule of law. Democracy certainly rests on consent, but it cannot compel consent, and it is this duality that resonates with discussions of the state of exception. So why might we refer to this as the ‘state of exception from below? Civil disobedience must, by virtue of the judgement about people’s own actions that it entails (albeit often enacted collectively through political organisation) work within an individualised understanding of the rule of law. This position is clearly and succinctly summarised by T.R.S. Allan: [T]he rule of law is most persuasively understood as an ideal of consent to just laws, freely given by all those to whom they apply... An illegitimate demand, that violates moral precepts taken to be fundamental limits on the state’s authority, imposes no genuine legal duty of obedience; and the state cannot be permitted to enlarge its legitimate jurisdiction by curtailing the citizen’s ability to judge whether or not its power have been exceeded (Allan 2001: 90-91). Here, it is the rule of law’s potential to appeal to values external to the positively enacted law that opens a space for the articulation of the notion that universal legality can be served by particular illegality, where universal legality is some higher politico-legal norm. This particular illegality reflects not the wholesale disregard of the law but rather a tacit acceptance of the rule of law in general. However, it is also a way of articulating a popular sovereignty that in any Lockean political system is the root of the state’s legitimacy. By disrupting the product of the state’s legislating, the citizens reassert their (retained) sovereignty over the governance of society. Moreover, as Loughlin glosses Locke: it ‘is precisely this threat of legitimate rebellion... which will ensure that those in power are not tempted to abuse it’ (Loughlin 2000: 169). Thus, if politics is built on the (implied) foundations of a prior social contract between individuals, and from which the state derives its legitimacy, then it must also include a potentially legitimate practice of civil disobedience (at particular times) as the manifestation of the wrestling back popular sovereignty from its (normally accepted) political location within the state. Moreover, returning to the exception and the earlier criticism of Agamben’s position, this reassertion of popular sovereignty is a key manner by which the state’s own attempts to move beyond that which is mandated by the citizen’s trust is both monitored and modified. Without civil disobedience Agamben’s fears might be justified, but his blindness to the power of civil disobedience undermines his conclusions. Civil disobedience, by maintaining an ability to recognise social pressures towards principled reform acts not to compromise the rule of law but rather to demonstrate its overall robustness; civil disobedience is actually a process of reconnecting civil and political society (Habermas 1996: 382). Therefore, Jűrgen Habermas argues that its legitimation relies on a dynamic understanding of the constitutional state ‘whose purpose is to realize the system of rights anew in changing circumstances, that is, to interpret the system of rights better, to institutionalize it more appropriately, and to draw out its contents more radically’ (Habermas 1996: 384, emphasis in original). It is a process of improvement of fit between contemporary society and the inherited constitution, or general sense of the rule of law that is adjudged to be widely accepted in the polity. Those who are joined together in civil disobedience regard themselves as sovereign to decide the exception; to form a view about the law’s content and act illegally to change the current constellation of laws so that the exception is nullified. Of course where this differs from the commonly held analysis of the state of exception, is that civil disobedience is not concerned with the maintenance of the exception, but rather of its nullification and resolution back in to the normal rule of law. However, it is also possible to see the top-down assertion of the state of exception in the same way; it shares with the bottom-up civil disobedience a role in the development of the rule of law itself, as the state seeks to justify and normalise the ‘extra-legal’ exception. Perhaps most importantly while each might be said to identify and act upon an exception, in both cases this is a socially repeated process not an exceptional practice in itself) and thus is an important aspect of the development of the rule of law over time. The Rule of Law, Civil Disobedience and the Global Democratic Deficit Before setting out the relevance of the argument developed above for the discussion of global constitutionalism, it will be useful to briefly draw the various themes together. In general the rule of law is presented in contemporary political discourse as a social and public good: it is commonly seen as in itself (partly) constitutive of the good society. A claim that any particular political practice is bounded by the rule of law is an attempt to legitimate and justify political action(s), but the term’s continuing indeterminacy allows it to be claimed (often) by all sides in disputes. Political disagreements frequently involve the depiction of a tension between an (imagined) rule of law and the practice of the rule of law as found: the notion of the rule of law is a value against which actual governance may be held for political reasons. While the rule of law has established legislative modes of review and reform, there are also external (extra-legal) practices that help amend the rule of law on the basis of identifying a problem with the current legal settlement; I have suggested these processes might be conceived as civil disobedience from below and from above. By presenting civil disobedience as part of the iterative process of the law’s development, I have explored whether we can also understand the state’s use of its sovereign ability to define the exception as a similar political practice. This comparison only makes sense if the states concerned are able to make meaningful and defensible claims for political legitimacy based on the rule of law within the national and international political arena(s). Much of the recent debate about the state of exception itself focuses its critique on liberal states that do claim substantial legitimisation through accordance with the rule of law, rather than those where there is little meaningful attempt to claim that the state operates on liberal principles. However, at the international level broadly speaking most states seem to observe the law most of the time (Henkin 1979; Tamanaha 2004: 131); this may be linked to issues of collective reciprocity, which is more than merely a tit-for-tat transactional reciprocation, and more of an expectation about (international) community stability building on the recognition of (international) social obligation (Brunnée and Toope 2010: 37-42; chapter three). Where states do act outside the (international) rule of law other states seek explanation and the construction of justifications for this practice, in a manner not dissimilar to the domestic processes around the exception that were examined above. Indeed, states frequently attempt to construe actions as consistent with the law itself and as such this is a testament to the value of the rule of law norm. Therefore, does it make sense to suggest that the state of exception in international law can also be usefully understood as analogous to civil disobedience (from above, as I have depicted it in the domestic sphere)? In his critique of Agamben, Martin Loughlin suggests that the (so-called) state of exception is not an extra-legal realm claimed by the state, but rather reveals the historical droit politique that is encompassed by his sociological depiction of public law (Loughlin 2010: 402). Here, ‘government is an office of trust’ (Loughlin 2010: 228), and linked to issues of political consent or a Lockean perception of popular sovereignty. Any claimed requirement to operate on the basis of the state of exception for reasons of national security will be tested through existing processes of political and social deliberation. An assertion of the state of exception in a democratic state (claiming to be ruled by law) will seldom be the subject of acquiescence. If the trust in government and/or the provision of consent breakdown then its actions in the prosecution of its droit politique will become the subject of political dispute. The costs to public servants and those in government of acting extra-legally therefore are not merely uncertain but can include significant personal risk once the act(s) is/are judged when ‘normal’ politics has been reasserted (Gross and Aoláin 2006: 151-153). This suggests that there may be significant disincentives to step outside the legal framework. Thus, because law can never be predicated on a perfect knowledge of the future of political and social context, democratic states have enjoyed the flexibility of droit politique, but equally, the practice of democracy has limited the extended establishment of the state of exception both in scope and duration. Again, significant intellectual resources may be extended by individuals to demonstrate that they really acted within the law. Indeed, as Gross and Aoláin argue, it is ‘precisely because the actions taken are extra-legal, and not made legal merely because of the decision of the president [or government], that the question of implications for the actor is still relevant’ (Gross and Aoláin 2006: 170). Much of the actual work of law at Guantánamo Bay, for instance, has been an attempt to ‘negate the exception’, and has sought to establish how legal authority might be constituted in these (peculiar) circumstances (Johns 2005). Much of the political activity around the ‘torture memos’ and the extra-jurisdictional existence of the Guantanamo Bay prison camp (a case often used by Agamben and others to argue that the state of exception has fatally compromised the rule of law) has taken place on the terrain of the rule of law. This has involved a set of legal and political retreats from the initial position, towards accommodation with the rule of law (Sands 2008), including the mobilisation of democratic forces that contributed to the end of the administration that was the original architect of the exception in this case. In other words, the political ratchet that Agamben argues has normalised the exception, is less evident than he asserts; there is movement back from the exception! It may be argued that the rule of law has been fatally compromised by the claim for exception, but when we look at how the institutions of the rule of law have responded to such claims, we do not see an uncritical acceptance of the claim, but rather a series of counter-arguments that test the state’s presumption that it needs to move beyond the established rule of law (Dyzenhaus 2006: 230-233). It is the relationship between these counter arguments and the rule of law that I have been mapping in the previous sections. As with civil disobedience, where changes to the scope and character of the rule of law are legitimated by the enjoyment of trust in the government, then political mobilisation is likely to remain relatively easy to ignore, in the same way that minority concerns that do not grow into major campaigns of civil disobedience can be treated as ‘normal’ criminal activity. However, where trust and consent is endangered or declines, then the state, and its government find themselves required to normalise the situation either by regularising activity back into that which is mandated by existing laws, or by seeking to change the law, so as in both cases to increase the plausibility of any claim that such actions are within the law. Where actions are accepted and not subject to widespread critique, then a legitimate droit politique is maintained and can be conceived as being within the realm of the rule of law, read widely as public law (in Loughlin’s depiction). Where (exceptional) actions are regarded as unjustified by vocal groups within the polity, then states have either attempted to claim some legal justification for action (such as, in a different matter, the Bush Administration’s ultimately unsuccessful claim to be establishing a customary right of pre-emptive self defence to justify the invasion of Iraq), or to bring such practices back into some form of conformity with existing laws (as the Obama administration continues to attempt to do with the remaining Guantanamo inmates). Therefore, in campaigns of civil disobedience, and in periods of exception, legal and social arrangements around governance are tested and the rule of law is flexed due to perceptions of social or political need. In both types of testing, values drawn from wider society are appealed to: on the one hand justice and fairness; on the other, national survival and safety. Neither of these forms of political boundary testing undermines the rule of law; rather they are part of the mechanism by which it develops. Clearly they are not the only mechanisms by which the rule of law changes over time, but unlike legislative change and precedent in common law legal systems, these forms of testing legality are conducted outside the formal institutions of the law, requiring these institutions to react when political necessity is established. One of the key questions prompted by the discussion of the political project of cosmopolitan democracy has been how non-state political groupings can influence or shape international law; how is democratic inclusion achieved in the international realm (Marks 2000: chapter five)? If the rule of law at the global level requires a global constitution for some form of cosmopolitan democracy to be developed then these mechanisms of inclusion are crucial to its legitimacy. Moreover, if as many argue participatory democracy is not feasible at a global scale, nevertheless ‘contestatory democracy is (Peters 2009: 270). Here, those outside states’ governments and international structures of governance must have available to them the open and clear mechanisms of contestation. Although global civil society’s engagement with global governance and international law has been mostly contestatory in character, their democratic credentials are not firmly established (even if their political heft is increasing). Making these mechanisms available, however, does not – as has been argued above – require their institutionalisation; rather it required the recognition and acceptance of their legitimacy. The fact that the mechanisms of debate and (potential) reform discussed in the previous sections are conducted outside the formal rule of law is what makes them relevant to the politics of global constitutionalism. Indeed, one of the ways that we might deal with the claim that there is a formal lack of (direct) democratic deliberation at the international level is to suggest that instead of focussing on legitimacy derived from electoral process, for pragmatic reasons, global constitutional politics needs to be more concerned with ensuring an enhanced representation by (global) civil societal actors and groups (Kumm 2009: 296). If these ‘representatives’ are limited (as they frequently are) to insider groups, then we must be clear about what mechanisms of influence remain for those with non-mainstream positions to articulate. Here the role of civil disobedience can immediately be seen as both relevant and directly related to a legitimate process for engaging with the rule of law from ‘outside’. Likewise for states; the ability to test the rule of law through the ‘exception’ allows international law to be developed and tested not merely by the most powerful states but by those whose overall acceptance of the international normative settlement may also be subject to differences over specific issues which play out differently for them relative to other sovereign states. As Allen Buchanan has observed, changes in international law ‘through the creation of new customary norms often includes illegalities in the initial stages, yet this has not resulted in the destruction of the international legal system’ (Buchanan 2004: 461). The position that the international legal realm is a seamless whole, whose integrity is devastated by any particular illegal action, does not accord with the historical record. As with the domestic situations discussed above the (international) rule of law is at least partly developed by states’ governments pushing the boundaries of what is legal and by such testing either international norms are shifted through acquiescence, or the status quo is defended leaving the particular actions illegal and (broadly) unsupported. States may act in consort through regional organisations to emphasise the order/justice-supporting ends of a specific ‘illegal’ intervention (Hakimi 2007: 682, passim), and by doing so seek, as do domestic campaigns of civil disobedience, to add weight to their concerns through collective action. Indeed, Buchanan himself makes an explicit link in his argumentation to civil disobedience (Buchanan 2004: 464-468), and as above, rejects the stretching of the institutionalisation of reform to include a ‘legalised’ disobedience, arguing that this blurs the notion of illegality unnecessarily, when the real judgment of the justification of illegal acts in the furtherance of reform must be an assessment of their morality. Finally then, the point of this article is two-fold: firstly it helps explain why the state of exception is volatile and not easily maintained; exceptions from above and below will eventually be forced back into irrelevance or conversely political-legal change by political pressure. Exceptions cannot exist for ever in a state of challenge to legality unless the state itself collapses into a non-rule-of-law form. Moreover, unless the state of exception is a new phenomenon, which Agamben and others do not seem to claim, then it would seem only occasionally to prompt the collapse of the rule of law (in failed states), whatever the claims about democratic states’ activities. The reason that the state of exception has not fatally compromised the rule of law is that it is actually part of the iterative mechanism of such rule and is as such misnamed. Arguments that seek to establish the state of exception as fatal to liberal democracy suffer from an error of categorisation: the state of ‘exception’ is actually a normal part of the political development of the rule of law. Nothing here is meant to minimise the immediate political significance of civil disobedience or the (so-called) state of exception, but it is intended to reintegrate the latter into the depiction of contemporary political process, and the development of legality and the rule of law. Secondly, when we expand this analysis into the realm of global constitutionalism, it reveals the mechanisms by which the international rule of law can be subject to legitimate political amendment even where there is a clear democratic deficit in the legislative deliberation around any global constitutional settlement. At the domestic level both the state of exception and civil disobedience are practices by which the rule of law is developed through an iterative process of boundary testing, and are both accepted as legitimate extra-legislative methods of political deliberation (contra Agamben). However, what is important is that these processes are able to gain political legitimacy outside the formal processes of the rule of law, even if they are clearly focused on the rule of law. Absent directly deliberative processes at the global level, the democratic deficit becomes a political problem for global constitutionalism. The recognition of the legitimacy of these non-legal processes of engagement with the rule of law, both offering long histories of legitimation, suggests that even without the formal democratic element, global constitutionalism can offer avenues of political engagement that do not require extensive participatory apparatus to be built. Moreover if the international rule of law is to endure then mechanisms by which legitimate interests can be articulated and encompassed within the political processes of review and renewal of the law must be both recognised (analytically and politically) and deployed by groups seeking to influence and shape the further iterative development of a global constitutionalism.  Bibliography Acton, H.B. (1956 [1969]) ‘Political Justification’ in: H.A. Bedau (ed.) Civil Disobedience: Theory and Practice Indianapolis: Pegasus. Agamben, Giorgio (1998) Homo Sacer: Sovereign Power and Bare Life Stanford: Stanford University Press. 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Generally, I have strengthened the authorial voice throughout to emphasise those aspects of the argument that build on but extend on the analysis in source material used, and thus make clearer its contribution. In response to the editors overall comments and the first referee’s fourth point [R1/4], I have moved the central question of the article to the ground of legitimate pressures on the rule of law from external (political) forces). I have removed the section ‘The Rule of Law: between thick and thin’ while retaining a few of the points made in that section; this reflects the main-general suggestion from the first referee, and also reflects the comment [R2/1] on the disconnect between this section and the main line of argument. This obviates the requirement to expand on the issue of human rights and imperialism (as indentified by [R2/3]) as this allusion has now been removed. Treatment of the rule of law is more closely defined in the re-written first main section, to clarify differences between realm of law and the practice of the rule of law, the latter with which I am concerned (see first editors’ comment in covering letter); this also reflects comment [R1/6] as regards the need to define the rule of law rather than imply a set of incommensurable alternatives. Thus, in response to the first referee and the general editorial comment I have focused on law as practice, rather than the moral content of the rule of law to emphasise that it is the manner of introducing the influence of social change that is central to the argument rather than the arcane discussion of how the rule of law’s moral content might be set out. In response to the editors’ comments, and the focussed remarks from the second referee [R2/2 & R2/6], the introduction notes the relevance of these issues for the international/global constitutional realm, which is then picked up in the final section, which has been substantially rewritten to make the relevance to the global realm explicit and clear. I have also taken up the suggestions of engaging with Frank’s Recourse to Force, with Gross and Aoláin’s Law in Times of Crisis and Fleur Johns article form EJIL to tease out the issues around the rule of law and extra-legal measures which offer some further support for the critique of Agamben’s analysis of the exception. I have also made significant additions to the final/concluding section, all of which establish more clearly the relevance of the arguments of the forgoing sections to the issue of global constitutionalism. I have again rendered the text anonymous by removing the acknowledgements footnote and one other to allow a second peer review round to be conducted without compromise.