In her book “Illness as Metaphor” (1978), the essayist and cultural critic Susan Sontag objected to the demonization of cancer, calling it just one disease among many, and not necessarily a deadly one. The metaphor of cancer, she wrote, is invoked to describe every loathsome thing from Stalinism to Watergate. The terminology that has adhered to the illness, characterizing it as malignant, lethal and incurable, is dangerous because it causes panic and despair.
Sontag called for the demystification of the illness, with the hope that tempered language would reduce the terror evoked by cancer and help normalize our attitude toward it. Ultimately, Sontag and her mother both died of the disease, and it goes without saying that the fear of cancer has not abated.
And what image will the coronavirus have in the future? What metaphor will be attached to this pandemic? A vast amount will surely be written about this, but I will limit my focus here to the political dimension.
Already, one of the main implications of the coronavirus is clear – the “state of emergency.” The current global emergency is trampling many individual rights and shrinking the democratic space for people in many countries that have a liberal character. In totalitarian countries like China, the state of emergency is a built-in part of the regime, while in authoritarian countries it is exploited to trample whatever remains of democracy, as Viktor Orban is doing in Hungary.
The concept of a “state of emergency” is not new: The ancient Roman Republic included a role for a “dictator” – a senator vested with emergency authorities for six months, after which that authority had to be returned to the Senate. The consul Sulla and Julius Caesar were the exceptions among the senators, because they retained their dictatorial powers beyond the allotted time, though Caeser continued to exercise his dictatorial powers in the Republic but not throughout the Empire.
In normal times, the Roman Republic had the first separation of powers in history: the two consuls (the executive branch), the Senate (which was more of an advisory body than a legislative branch) and the tribunes (which could impose a veto on the consuls). In this way, the consul was prevented from assuming excessive power. Citizens of the Roman Republic greatly feared that the state of emergency would be exploited and left unlimited – which ultimately led to the establishment of the Empire.
In modern times, the invoking of a “state of emergency” has mainly been associated with the regimes of Nazi Germany, fascist Italy and the Bolshevik Soviet Union, though leaders of democratic regimes have also declared states of emergency for limited periods. In the great American democracy, President Franklin D. Roosevelt’s order to send 120,000 Japanese Americans to internment camps was implemented between February 19, 1942 and January 2, 1945. The order and its execution were met with silence from the Supreme Court.
In a speech on May 30, 1968, French President Charles de Gaulle threatened to declare a state of emergency to quell the student protests and labor strikes, following the precedent in which a state of emergency was imposed after France’s withdrawal from Algeria in 1962. In 2005, President Jacques Chirac declared a state of emergency, which lasted more than two months, due to the riots by immigrants.
A state of emergency is not a legal situation. Outside of constitutional law it is a prevalent concept in social thought and political philosophy. The term is most commonly associated with the political philosopher Carl Schmitt, a prominent jurist of the Third Reich. In his 1921 essay “Die Diktatur” (“On Dictatorship”), Schmitt distinguished between “sovereign dictatorship,” which derives its legitimacy directly from the people, and “commissarial dictatorship,” which derives its legitimacy from the constitution. The latter occurs when the threat to order rises to a degree where a dictatorship becomes unavoidable.
Schmitt believed that the Reichspräsident, the German head of state during the Weimar Republic, was akin to a commissarial dictator entitled to invoke the infamous Article 48 permitting emergency measures. A year later, Schmitt published his book “Political Theology,” where he argued that sovereignty does not reside in norms, in a people or in a constitution, but in a person or group authorized to reach a state of “decision” (Entscheidung).
From here it was a short leap to membership in the Nazi Party, which he joined in 1933 as member No. 2,098,060, and to attaining senior juridical status, with which he established the constitutional structure of the Third Reich. Thus Schmitt became the theoretician of legal fascism, which asserts that the sovereign is not the citizen but the all-powerful leader who knows when to declare a state of emergency, steers the ship at the moment of decision and can distinguish between friend and foe.
‘State of exception’
Schmitt went on to become a darling of critical theory in the West and Israel, praised by thinkers from Walter Benjamin to the Italian philosopher Giorgio Agamben, one of the most prominent philosophers of our generation. His political and legal concepts eventually were stripped of the historical context they had in the 1920s and ‘30s. Agamben talks about a “state of exception” in which constitutional rights are suspended and a Western democracy may become a tyrannical regime under an extended state of emergency. For example, he criticized U.S. President George W. Bush’s order of November 13, 2001, which, Agamben said, “radically erases any legal status of the individual, thus producing a legally un-nameable and unclassifiable being.”
On February 26, at the start of the coronavirus crisis in Italy, Agamben came out against “the frantic, irrational, and absolutely unwarranted emergency measures adopted for a supposed epidemic of coronavirus.” He argued that not only was there no epidemic in Italy, but “only 4% of patients require intensive therapy.” Protesting the panic sown by the media, he said journalists were promoting a state of emergency that was being used as a pretext for lockdowns and active surveillance.
When the situation in Italy worsened, Agamben published another response. He did not admit that he was wrong in his original estimate about the spread of the pandemic but dug in his heels and warned against a normalization of the state of emergency and life under protracted curfew. He also warned against a situation in which citizens see one another as a mortal danger in a “civil war” where the enemy is not external but rather within us.
With all due respect to his warning, it must be said that there are extreme situations such as natural disasters where emergency measures are warranted. The coronavirus pandemic is one of those situations.
Therefore, emergency measures should not be rejected out of hand (Italy is a prime example), but we must maintain a critical attitude toward government officials – and toward philosophers who seek to subvert the power of every government. With his blindness regarding the pandemic in Italy and the measures needed against it, Agamben joins a long list of critical theoreticians who became trapped in the net of their conceptions and failed at the moment of truth.
This list includes Schmitt, who did not understand in time that his analysis of the weaknesses of the Weimar Republic and his recommendations for strengthening the executive could degenerate into support for establishing an authoritarian state. It includes Michel Foucault, who in 1978 expressed awe for the “spiritual revolution” ushered in by Ayatollah Khomeini. And after 9/11, Jean Baudrillard praised the aesthetics of terror in the fall of the Twin Towers. Of such people it is said: And who will criticize the critics?
However, the tragic mistakes of these theoreticians need not negate the critical discussion they launched on the subject of the state of emergency, especially their insistence on the grave implications that the declaration of a state of emergency can bring. Israel, for example, is in a permanent state of emergency, going back to Article 9 of the 1948 Law and Administration Ordinance, which states that an “emergency regulation may alter any law, suspend its effect or modify it.” The Knesset holds the power to declare a state of emergency, but when no Knesset is convened, as happened last month (before the High Court order), this power is in the hands of the government.
Those critical days when Speaker Yuli Edelstein halted the activity of the Knesset and refused to accept the High Court ruling were unprecedented in the history of Israeli democracy. For one chilling moment, the judicial branch (the High Court whose ruling was defied and the courts that ceased to operate) and the legislative branch were neutralized.
Only the executive branch was left to operate, and here we had a caretaker government without a Knesset majority, headed by a man under criminal indictment who is postponing his trial via the justice minister from his party. He is also commandeering the major media outlets almost daily for his announcements on the advanced stages of the state of emergency – announcements without questions from journalists.
Israel’s uncertain immunity
The fundamental problem only becomes more serious when the prime minister insists that the Knesset speaker be a member of his party. He does not understand (or worse, he does understand) what the Roman Republicans knew – that the Senate (or Knesset) is never supposed “to give the sword to the king.” Contrary to the understanding between Likud and those who wish to form a coalition with it, it should be made plain that the Knesset must be an oppositional body in relation to the executive branch. In the absence of such an understanding, particularly in the state of emergency in the age of the coronavirus, Plato’s question – Who will guard the guardians? – bears repeating.
For a brief but very significant moment because of the precedent that was set, the mighty rock upon which democracy (any democracy) rests – the principle of the separation of powers – crumbled. For one terrifying moment, two branches ceased to exist, and the executive took on emergency powers. If this has happened because of a pandemic, who can guarantee that it won’t return with greater force when another danger, perhaps an even graver one, threatens Israel, maybe after a biological or nuclear attack?
Even without a formal declaration, Israel is currently under a state of emergency. The Shin Bet security service’s secret intelligence database (known as “the tool”) is being used for surveillance of coronavirus patients, without approval from the relevant Knesset subcommittee. Soldiers are being posted in certain localities to help enforce the emergency regulations, even before a cabinet decision on the matter. The opposition has been broken apart. And the parliamentary representation of 20 percent of the population is considered illegitimate as a possible coalition partner.
Perhaps Israel’s democracy is not in immediate danger, because in liberal regimes, states of emergency are usually temporary; that is, “usually.” The scenes of recent weeks mean we must remain vigilant. What’s needed now is a fighting opposition and a critical media.
Israel has suffered a governmental crisis at the height of a state of emergency: The ruling party has suddenly swallowed the opposition, the Knesset speaker has disdained a High Court order and caved to the will of the prime minister, the internal security service is invading our privacy unhindered, and colonialist rule over subjects without rights continues unabated. Such a crisis does not bode well for Israel’s fragile democracy. Though it has withstood many difficult tests, this does not mean it is forever immune.
Prof. David Ohana is a historian at Ben-Gurion University of the Negev and the University of Cambridge.
