The 'War on Terror' and the growth of executive power? A comparative analysis

Constitutions – codified or unwritten – institutionalise and actually constitute specific equilibria or balances of power between the executive and the legislature. Yet equilibria may shift over time. In particular, normative and empirical political theorists have long recognised that critical events – war, civil unrest, economic and political crises, terrorist attacks and other external shocks – strengthen the power of the executive, disrupt and threaten constitutional politics and damage democratic institutions. Following Locke in The Second Treatise of Civil Government (1690, Ch. XIV), the British constitutionalist A. V. Dicey noted that ‘under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary power’ (Dicey 1908: 406-7). Indeed, ‘there are times of tumult or invasion when for the sake of legality itself the rules of law must be broken … The Ministry must break the law and trust for protection to an Act of Indemnity [from Parliament, which] … legalises illegality” (408). A few years later, Carl Schmitt went much further. In the context of widespread social unrest, political instability and the highly fragile new Weimar Constitution – which intended that power would be shared between the executive and the legislature – Schmitt asserted that the state’s sovereignty cannot be derived from some ‘basic norm’ of liberal parliamentarism devoid of actual political content, as Weber and various legal scholars argued. Rather, in the face of ‘concrete danger’ or the ‘concrete situation’, political order cannot be maintained by constitutional provisions alone, but by an extra-constitutional authority (Schmitt 1922: 7, 11-12), a ‘sovereign’ who enjoys a ‘monopoly to decide … whether there is an extreme emergency as well as what must be done to eliminate it … [and] whether the constitution needs to be suspended in its entirety’ (7, 13).2