The new legitimacy of power

This is the first part of a series on the evolution of power dynamics in Europe. Events in the last 6 months have shown that the rationale for political power in Europe has changed, though very few observers have noticed. This essay shows how it has changed. The next ones will focus on the reasons and, finally, on the role of journalism in this new normality.

During the French Civil War of 1793, when troops of the republic fought troops of the monarchy, they went into battle for “the Law”1. They fought so that power would not be used arbitrarily, but would find its source in rational rules that ensured the welfare of all.

Two hundred and twenty-two years later, a few kilometers to the East, the prime minister of France declared that a law probably did not respect the constitution, so “better not ask about it”2.

How did the same country move from fighting for the Law to having its government disregard it completely? This essay shows that, while those in power in the late 18th century worked hard to legitimate their position through the law, people in power today find it more a hindrance - and look for new ways to legitimize their power.

Before the Enlightenment, kings asserted that their power was given by god3. From this starting point, a set of obvious conclusions followed. Because god can only be right, nobles, who had received power from god, had to be more intelligent, more beautiful and more apt at exercising power. Otherwise, god would not have given it to them. The relation with people who did not have power was one of ownership and control.

Thinkers of the Enlightenment saw things differently. They thought that humans were created equal and that god did not endow a tiny minority with superpowers. Instead, they imagined that if clear rules were written by consensus by an assembly of human beings, power could be used in a less arbitrary and more rational way.

After the French revolution of 1789 and the short civil war (the Republic won) mentioned above, things went extraordinarily quickly. Countries everywhere wrote constitutions. The United States in 1789, Poland and France in 1791, Spain in 1812. The law, which used to be a given of god via the Bible or the decisions of the king, now had to be written down. These texts explained how power was to be distributed among the constituents of a territory. The end of this transformation came with the Napoleonic code, a short book that was intended to be read by everyone. Because Napoleon conquered much of Europe in the first years of the 19th century, his code was adopted in many territories. No more arbitrary decisions by god-like rulers, no more ownership of the majority by the few (serfdom was abolished at precisely that time). Now, everyone had to abide by the same list of written rules. This all happened within 25 years. Much less than a lifetime, even in the early 19th century.

Consequences of the rule of law

On criminal law. That power be codified had tremendous consequences, not least on criminal law. Prior to the 19th century, because rulers were infallible (they were chosen by god for precisely this reason!), there was no need for fair judgments or proofs. Criminal law existed to demonstrate the power of the rulers. Anyone who was accused by the ruler was already at least a little guilty. Why else would the king or his representatives have accused him?4

The rule of law made this system of criminal law obsolete and dangerous. Obsolete because the power to punish had to be codified. The ones doing the punishing had to be certain that the person being punished was guilty. This led to the upgrade of the investigative process and modern criminal procedure. Dangerous, because criminals were not considered fools who had dared defy the king anymore. They were individuals who did not respect laws that applied to all. They needed to be reprimanded and transformed into good citizens. The purpose of criminal law shifted from the king exerting revenge to society caring for its lost sheep.

On international law. In international relations, the change to a law-based power system led to the development of international law. Until the 18th century, treaties between states were really contracts between two rulers, who agreed on how to divide their properties after a war5. Several scholars had reflected in centuries past on what was a just war, but there was no mechanism for rulers to organize power at the European level. In 1772, no one was shocked when three countries divided a fourth one as Prussia, Austria and Russia invaded and annexed parts of Poland. In 1807, no one was outraged that Great Britain bombed thousands of civilians of a neutral state to death at the bombardment of Copenhagen6.

The Congress of Vienna, just eight years later, marked a turning point. European rulers accepted to write down a series of principles that would govern the relationships of power between states. It is at Vienna, for instance, that the concept of neutrality took the sense it has today for the first time, after the British so violently ignored it in Denmark (as had, to be fair, everyone else in other countries before). After Vienna, governments developed a system of conferences where they sought to resolve issues in peacetime and in common. The creation of the League of Nations and, later, the United Nations, is a direct consequence of this early-19th century “Concert of Europe”.

Contingency

In 1793, the very regime that fought for the Law randomly beheaded thousands. Some of the nobles who thought their power came from god treated their subjects much better than governors appointed by law. International law emerged because European rulers had to find a solution to prevent revolutions from spreading after the disaster that were the Napoleonic Wars. The codification of law arose from the need to organize more complex states at least as much as from a change in the conception of the legitimacy of power.

History is not driven by ideas. Facts on the ground decide ; values are molded to fit them as much as they contribute to them. However, understanding the underpinnings of a system of power is critical to understanding its dynamics and making sense of a situation. By formulating his or her own understanding of a situation, one is able to confront the narratives offered by rulers and preserve intellectual freedom. This essay tries to make sense of current developments - it claims in no way that the new legitimacy of power is the result of a conspiratorial process.

The new legitimacy of power

In the late 1980’s, a double dynamic opened the way for a new legitimacy of power. On the one hand, the collapse of the Soviet Union removed the need for a system of international law. Rulers tested the limits of this new, lawless framework first internationally, then internally, to the point where they do not feel constrained by laws anymore. On the other hand, institutions that were supposed to constrain rulers have lost their strength. By sapping their social and financial foundations, rulers ensured that their claim for power would go unchallenged.

The decreasing importance of legality

We have reached a point where the government of United States not only can invade any place it so wish, it can do so in secrecy and not raise any outrage, either internally of internationally. In early May 2016, for instance, the Pentagon disclosed that it sent ground troops to Yemen after they were deployed, and refused to say how many7. While some criticism was voiced, it barely created a ripple in the news. Yemen is only the latest of a long list of countries that have been bombed or invaded by American or European armies, following Iraq, Libya, Afghanistan and Syria.

Wars of aggression are not new. Plenty of examples from the 19th and 20th centuries show that governments did not hesitate to display their strength with military expeditions. But a change of norm has happened. When the United States invaded Grenada in 1983, the international outcry was huge, although the intervention was probably smaller in size than the current one in Yemen8. It has become normal for the United States or European governments to intervene militarily anywhere. In Syria, for instance, military intervention by the United States hinged on a “red line” decided arbitrarily by president Barack Obama in 20129. That the United States did not bomb president Assad’s forces in the end matters little. What matters in this argument is that no journalist or European government saw it fit to question the legality of this “red line”. On the contrary, the only legal military intervention in Syria was Russia’s10. It was widely criticized in European capitals11.

The territories invaded or bombed lose their status of legal entities. Attacking a country would mean declaring war. Instead, by not declaring war, bellicose governments implicitly ascertain that the territories under attack are not countries. By doing so, they deconstruct the international system that finds its embodiment in the United Nations. The political vision at play is one where only a select group of entities have a right to statehood, while others must abide by the unwritten rules of the more powerful ones.

That the new rules are not written is the reason why this new international system marks the end of the period that started at the Congress of Vienna. Of course, terrorism is given as the reason for a new bombing. But there is no set of criteria, agreed upon between sovereign states, on what constitutes terrorism, which would help in knowing when a region is at risk of being bombed. Only the arbitrary wishes of the military of Washington, London or Paris decide.

What started in international relations quickly trickled down to criminal justice. The creation of Guantanamo in 2001 marks the starting point of an era where governments can free themselves from the constraints of the law. This system of punishment outside of the judicial process was continued in the 2000’s and the 2010’s, whether heralded by the United States and its international torture programs with European complicity12 or by European governments themselves, such as the French state of emergency and the hundreds of people it put under house arrest without trial13.

Within the judicial system, the idea that sentences should help convicts relearn social manners is disappearing fast. Instead, the vision of justice as exerting revenge in the name of the ruler is returning, whether in the form of mandatory sentencing (when judges cannot sentence an offender less than a minimum set by law) or in the form of life sentences, such as the one given to a 15-year-old in the United Kingdom in 201514.

Once again, that governments kill and torture is not new. The novelty lies in the normality of the practice. Few governments criticized the arbitrary detention at Guantanamo and none mentioned the arbitrary home arrests by the French government that started in November 2015. Organizations outside of the government did react, but the reaction was not strong enough to provoke change. This lack of reaction shows that governments and civil society accept the fact that a sentence can be given to a suspect without trial. In these cases, being a suspect is the first gradation on the scale of guilt. Surveillance and house arrest stand at one end, murder by drones is at the other. Governments reassessed their ownership over the lives of individuals, which was precisely what the Napoleonic code and the end of serfdom repelled in the early 19th century. With drone strikes and arbitrary detention, the idea that a judicial apparatus is needed to assess the rightfulness of punishment and that suspects are innocent until proven guilty ceases to be the norm. When deemed necessary, governments now have the right to ignore the law. And governments themselves have the right to decide when it is necessary. In other words, the very application by the government of its own power to arrest and detain is the justification for the arrest and detention.

Beyond international and criminal law, this new justification for power can be observed in the behavior of rulers themselves. When British Home Secretary Theresa May utters illegal policy suggestions15, when French prime minister Manuel Valls admits that he does not respect the constitution or when Poland strongman Jarosław Kaczyński explains that he will not abide by a decision of the constitutional court16, they do not display their lack of understanding of the legal framework. They show that their power does not depend on the legal framework. They know that they can call for not respecting the law - and not respect it indeed - without facing any serious risk of being deposed. By showing their disrespect for the law, they show that their power is based on their existing power. Political power in Europe now legitimizes itself.

The actions of Viktor Orbán, Manuel Valls, Jarosław Kaczyński and other European rulers are not eruptions of abnormal authoritarianism. They are the new normal. Rulers and ruled have accepted that the law is not the supreme norm anymore, but a tool among others to achieve an end. In this sense, we are witnessing a change in civilization, as French philosopher Jean-Luc Nancy wrote in January 201617. The rule of law that was implemented in the early 19th century has come to an end.

The dereliction of institutions

That rulers want more power is not new. What is new is the absence of constraints they now face.

With the Soviet Union and the planned economy discredited for good, the 1990’s saw the widespread implementation of the principle of market regulation. Public institutions, the thinking went, were not efficient and were to be replaced by markets, which, by their very nature, self-regulated. The “Washington Consensus” embodied a set of principles which urged governments to privatize as many of their assets as possible and to loosen all rules on business.

A 1997 report quoted by the World Bank as exemplary states (on the topic of finance) that the “fundamental guiding principle in the design of all regulatory arrangements is that they should seek to support and enhance market functioning”18. Putting aside the irony of the timing of the report, just three months before the Asian crisis, this sentence exemplifies the thinking of the time. Public intervention should second (“support”) markets, which, it is implied, preexist the state. Their absence or poor functioning can only be due to ill-advised public interference.

It did not take long for economists and policy analysts to realize that the Washington Consensus did not work. The Asian crisis in 1997, the Argentinian and Russian crises in 1998 and the growing opposition to the Consensus, which became highly visible for the first time at the World Trade Organization meeting in Seattle in 1999, convinced many that putting the private sector in charge was not in the best interest of any country. The international institutions and academics that had pushed for the Consensus in the 1990’s backtracked from 2000 onwards19. But the genie was out of the bottle.

Faced with shrinking resources relative to their financial needs, European governments kept on selling assets and cutting costs. As a result, institutions that for decades had shown strength and commanded respect have become impoverished to the point where their attractiveness and respectability is badly damaged. How can a judge with a 4-year backlog of cases be proud of her work? How can a university professor who is pressured to give good grades to incapable but solvent students contribute to the intellectual debate? How can a hospital which cannot afford to have soap in its toilets be a respected institution? How can a newspaper that cannot maintain a foreign bureau be respected by an administration?20

The set of institutions that have been built along with the modern state (schools, universities, tribunals, health inspectors, unions etc.) have collapsed. Most of them still operate and their personnel often shows and incredible willingness to accomplish the mission they have been entrusted with. But they cannot play the wider societal role of moral and actual counterweights to the political personnel they once took.


The dereliction of institutions, which, coupled with the collapse of the Soviet Union, unbridled the power of European rulers, brought another major change, which, in turn, helped the executive power strengthen its position. This major change is total control through ubiquitous surveillance, which I will explore in depth in the next essay of this series.

Notes

1. Of course, there is no video recording, but reading Victor Hugo’s Ninety-Three, for instance, will put you in the mood.

2. Read this article in Politis [fr]

3. This paragraph is very simplified and very French-centric. It is simplified because of my limited resources time. It is French-centric because French writers, in the 18th century, had a major influence of the social-political debate for the rest of continental Europe.

4. This whole paragraph is me paraphrasing the great work of Michel Foucault in Discipline and Punish.

5. This is from From The Peace Of Westphalia To The Congress Of Vienna, a chapter of The Oxford Handbook of the History of International Law.

6. Anger was the result, but it was not seen as an abnormal military operation. Read the chapter on the Bombardment of Copenhagen in Experiences of War and Nationality in Denmark and Norway.

7. Read Pentagon quietly sends troops to Yemen to fight al-Qaeda — which U.S. strengthened by backing destructive Saudi war.

8. Read US Invasion of Grenada: A 30-Year Retrospective.

9. For the history of this ‘red line’, read President Obama and the ‘red line’ on Syria’s chemical weapons

10. Read former British ambassador Craig Murray’s take on the issue: Syria and the Law.

11. I am in no way saying that the actions of the Russian government are good or justified, or that the Russian government respects international law (it doesn’t). The reactions they provoked, however, show that the concept of international law has lost its appeal.

12. Read Reprieve’s investigations on the issue: European rendition complicity.

13. See a list of actions taken by the French police under the state of emergency on this wiki [fr].

14. Read British Teenager Sentenced in Plot to Kill Police on Anzac Day in Australia.

15. She suggested that the United Kingdom leaves the European Convention of Human Rights while remaining in the European Union, although membership of the EU requires that countries are part of the ECHR. Read in the Guardian UK must leave European convention on human rights, says Theresa May.

16. Read in Politico Poland’s PiS warns critics: We’re not changing, get used to it.

17. TRIBUNE « Ce débat signifie que nous sommes dans la fin d’une civilisation » [fr].

18. The report is here, the World Bank statement on its consensual nature is here.

19. For a list of academic assessments of the implementations of the Consensus, read part 6, What Went Wrong? of The Washington Consensus: Assessing a Damaged Brand

20. As exemplified by one of Barack Obama’s advisers when he says that “newspapers used to have foreign bureaus. Now they don’t. They call us to explain to them what’s happening in Moscow and Cairo. Most of the outlets are reporting on world events from Washington. The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That’s a sea change. They literally know nothing.” In Obama official says he pushed a ‘narrative’ to media to sell the Iran nuclear deal.


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