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Legal perspectives on contingencies and resilience in an environment of constitutionalism â An overview
Clive Walker
School of Law, University of Leeds, UK
Contexts
Many of the hazards faced by twenty-first century society reflect changes within the broader risk domain which are characterised by high levels of unpredictability,1 and low tolerance of risk.2 By these trends there emerges a ârisk societyâ.3 In turn, the crises caused by the actual occurrence or simply the threat of terrorism, pandemic human and animal diseases, and climate disasters such as hurricanes and floods have all been taken to be reflexive outcomes of late modernity, which were much as predicted by the risk theorists. Thus, late modern terrorism can be interpreted as an unwanted by-product of networked modes of relationship, the removal of sovereign borders, and even the end of dialectical political progress in which we instead witness âtriumphant globalisation fighting with itselfâ.4 Likewise pandemic diseases and disasters are posited as the darker sides of scientific or industrial âprogressâ.5
Such hazards seem to demand novel responses and regulations which can take account of the post-industrial landscape and the âhollowed outâ state.6 While the role of government remains that of titular guarantor of security for its citizens,7 a task which the state still relishes since it accords legitimacy and allegiance, the mission cannot be accomplished by government alone, but in a late modern sense is delivered by networked modes including private stakeholders and indeed the mobilisation of all citizens to practice self-resilience. Thus, for the effective management of risk, and for resilience and recovery to be achieved, participation by a range of public and private sector stakeholders is required but can be obdurately difficult to deliver.8 In an ideal scenario these networks improve the stability of policy-making around contingencies and increase the likelihood of a policy objective being achieved on account of the wider processes of information-gathering and risk-assessment. However, in seeking to provide stability, government intervention may embody the potential for unintended consequences, including financial and political costs, as well as negative impacts in terms of displacement.9 These divergent results reflect the dynamic and complex nature of risk and security management in late modernity and the key challenges facing institutional actors, such as uncertainty and the limits of knowledge. Policy communities may also impose constraints on the way pertinent information is communicated through the pre-filtering of information or the implementation. These problems, in turn, may adversely affect the way public sector institutions respond to, or prepare for, crisis, particularly in the context of a networked governance framework which is oriented around resilience.
The collection of papers in this special issue will not provide a blueprint for overcoming these manifold woes of the late modern conceptualisation and management of risk, but they will provide original and insightful commentaries which explain and analyse the problems arising, and offer some conclusions as to how some of the difficulties of emergency response can be overcome. There are two important contexts within which the contributors have been asked to undertake this work.
One is that we have sought to adopt a âlegal perspectiveâ, by which is meant that the papers in the collection focus upon legal mechanisms to build, structure or exercise power. It is notable that law has played a prominent role as an instrument in contingencies management and emergency response in recent times, for it seems contrary to some of the discourses of late modernity, wherein national sovereignty is downplayed. Exploring this tension, we have chosen to concentrate on legal mechanisms at the national level, since much of the effective action is still taken at that level when issues of national security are at stake â a domain which is one of the vestiges of old-time sovereignty, where states are often much less willing to share than with other policies. The partial coverage and uneven implementation of European Union involvement in security affairs is testament to sovereign reticence,10 although progress has been made with contingency planning in the field of major critical infrastructure,11 and on a broader front with national risk assessments12 and two Council Decisions on the Civil Protection Mechanism, which facilitate cooperation between the Member States and the Union in the field of civil protection.13 In any event, the focus on the legal is not intended to mean just the core instruments of legislation and judicial decisions. Rather, plenty of materials will be found in the papers in this collection where states and other authorities have resorted to a much wider range of instruments, especially guidance, mutual understandings and other forms of governance devices.
The second parameter is âConstitutionalismâ, which provides a critical perspective for the papers in the collection. As with the âlegal perspectiveâ, the concept is not defined narrowly but is understood as the collection of values which foster state legitimacy, even in extreme situations, and principally comprising: transparency and legality; effectiveness and accountability; and respect for individual rights.14 This focus is again apparently paradoxical. The most notable emergency of recent times, the terrorism emergency of 9/11 and thereafter, has, it is claimed, been met not only by bloated security laws and apparatus but also by the rising assertion of judicial and parliamentary review. This trend towards greater assertiveness in security disputes challenges the assertion that anti-terrorism legislation represents naked power â rule by law and not by the rule of law.15 A more principled and controlled approach towards anti-terrorism legislation is far from that of a totalitarian state of exception which operates in a legal vacuum.16 Thus, most governments (with one notable exception) have not declared an all-encompassing âwar on terrorâ which rivals or replaces regular laws, nor have they engendered a âzone of anomie in which all legal determinations are deactivatedâ.17 Those commentators who peddle such a picture appear ignorant of the efforts of the international community since 1945 to determine that no such state of anomie or Hobbesian state of savagery can be authorised again under the contemporary codes of international humanitarian laws and international human rights laws. The contemporary rulers of liberal democracies who have sought to draw upon the poisonous old doctrines of absolute executive authority have rightly faced concerted legal opposition. Most norms have not at any time been suspended, as with the âwar on terrorâ or âcriminal law of the enemyâ,18 but societies have adapted to a new normality of terrorism. As the UK Foreign Secretary, David Miliband, declared, âWe must respond to terrorism by championing the rule of law, not by subordinating it, for it is the cornerstone of the democratic society.â19 Even US President Obama has consistently called for an end to exceptional measures (such as detention at GuantĂĄnamo Bay),20 although his championing of drone strikes may be no less abusive of the rule of law.21 The trend towards constitutionalism demonstrates that its principles are becoming ânot a mask but the true image of our nationâ,22 and offer protection from naked state power.23 The law has thereby demonstrated capacity through its normative power and through the independence of its institutions to respond to executive claims to power even in circumstances of dire emergency, and to impose some ethical restraint.24 The papers in this collection will consider the success of these ethical constraints.
The papers
There are eight papers in this special issue. They might be categorised in various ways, but the following four part typology seems the strongest to emerge.
The first theme concerns the meanings of contingency and emergency. The wider the categorisation, the more that âspecialâ measures are needed (and perhaps the more special they become). This net-widening process is demonstrated in various jurisdictions. In the UK the Civil Contingencies Act 2004 imports a far wider definition of âemergencyâ in sections 1 and 19 than the legislation it replaced, which was essentially concerned with mass industrial dislocation.25 This legislation is covered in the papers of Moosavian and Walker, but it is the paper of Catherine Appleton, âThe Breivik Report: Lessons from Norwayâs âLone Wolfâ Terrorist Attacksâ, which sheds novel light on the struggle to place boundaries around the conception of emergency and the stateâs claim to take exceptional action. Her paper considers Anders Behring Breivikâs massacre of 77 people at two sites in Norway on 22 July 2011 and assesses fully the dangers and potential dangers posed by âlone wolfâ or lone operator terrorist acts. As demonstrated on 22 July, the lone wolf operational model presents a number of critical challenges for crisis management and emergency preparedness, even for highly ordered and well-financed countries such as Norway. According to Bakker and de Graaf, âlone wolf terrorist acts should be considered âblack swanâ occurrences that are almost impossible to categorize or systematize, let alone forecastâ.26 The aim of Appletonâs paper is to draw attention to the phenomenon of lone wolf terrorism and to critically assess the response by the Norwegian authorities to the twin terror attacks in 2011. I...
