Abstract
It has stood to reason since time immemorial: extraordinary threats call for extraordinary measures. Yet whereas external and domestic threats caused the state of exception to be conceived in terms of time and space, combatting jihadist terrorists calls for an entirely different approach to which the state of exception is hardly suited.
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Notes
- 1.
Antiquités Romaines, V, 73, 3.
- 2.
Politics, III, XIV. See Aristotle (1999) 73.
- 3.
The last dictatorship of the classical republican era dates back to 202 BCE.
- 4.
On this point, see our book, Saint-Bonnet (2001), 43–80.
- 5.
Named after their shield, the pelte.
- 6.
Gehrke (1987).
- 7.
The matter was the subject of the beginnings of codification with the ordinances of 1 August 1733 on stronghold command and service, 25 June 1750 on the governors and lieutenants general of the provinces, stronghold governors and staff and service therein, and 1 March 1768 on settling service at the strongholds and in the quarters. On these points, see the excellent thesis by Le Gal 2011).
- 8.
Bossuet wrote that, “By the hand of such a great king [Louis XIV], the whole of France no longer forms, as it were, merely a single fortress displaying a formidable front. With complete coverage, it is capable of keeping peace securely within; but also of going to war wherever necessary, and striking near and far with equal force”. (Bossuet 1683), 598.
- 9.
Article 12 of the law stipulates that the state of siege shall end, “Once an end has been put to the investment and, in the event of the attacks having commenced, only after the besiegers’ structures have been destroyed and the breaches repaired or readied for defence”.
- 10.
The area under a state of siege extended over up to 1800 toises (approximately 3500 m), or large cannon range.
- 11.
Article 92: “In the event of armed rebellion or unrest threatening the security of the state, the law may suspend in the places and for the time which it shall determine, the authority of the constitution. This suspension may be declared temporarily, in the same event, by a government order when the legislative body is in recess, provided this body is convened at the earliest convenience by an article of the same order”.
- 12.
On this point, see our book, (2001), 316–334.
- 13.
Delsol, rapporteur to the French Senate on the law of 1878, had tried to be reassuring in a climate of distrust of the executive shortly after the crisis of 16 May 1877: “The state of siege authorised by the commission’s bill is a state of siege located in those parts of the land where imminent danger is found. It will therefore always be a very limited state of siege from the point of view of perimeter, and will not be able to operate outside the perimeter within which it is established. It is my firm hope that we will never again see a political situation that makes a state of siege necessary in 42 departments”. (French Senate, 16 March 1878, Journal Officiel, p. 2900. The 42 departments refer to the war of 1870).
- 14.
Bull. des Lois, No. 135, p. 2268.
- 15.
Especially Joseph Barthélémy in his articles in the Revue du Droit Public. See our article, Saint-Bonnet (2016), 87.
- 16.
A circular from Interior Minister Malvy dated 1 September 1915 provided for, “As of 5 September [of that same year], prefects and mayors, on the national territory outside of the area of the armies, to freely [exercise], as in times of peace, all the attributions assigned them in policing and keeping order. The military authority shall henceforth [exercise] only those extraordinary powers pursuant to Article 9 of the law of 1849, and which the civil authority does not exercise under normal circumstances”.
- 17.
The criteria elected were “irregularity” (i.e. an un-uniformed, non-state enemy), “increased mobility of the active combat” and a “heightened intensity of political commitment” (Schmitt 2004) 13.
- 18.
The extensions were not passed by parliament, but adopted by the President of the French Republic on 24 April pursuant to the Head of State’s special powers under Article 16 of the French Constitution and then under the referendum law of 13 April 1962.
- 19.
Francis de Pressensé, Léon Blum and Émile Pouget had a pamphlet published in 1899 entitled Les Lois Scélérates de 1893–1894 (de Pressensé et al. 1899): this adjective was to remain attached to these laws otherwise largely approved in their time.
- 20.
Legal experts define these three elements as forming the components of “material” public order as opposed to the very vague “immaterial” public order comprising, for example, the “minimal requirements of life in society” put forward to ban face covering in public, i.e. wearing a full-face veil.
- 21.
Courses can, for example, be ordered for individuals sentenced for wearing a full-face veil despite the ban of the law of 2010.
References
Aristotle (1999) Politics, Benjamin Jowett tr, Batoche Books
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de Pressensé F, Blum L, Pouget E (1899) Les Lois Scélérates de 1893–1894 (Editions de la Revue Blanche)
Gehrke H-J (1987) Stasis: Untersuchungen Zu Den Inneren Kriegen in Den Griechischen Staaten Des 5. Und 4. Jahrhunderts v. Chr (Beck 1985)
Le Gal S (2011) Origines de l’Etat de Siège En France Ancien Régime-Révolution, Université de Lyon III
Saint-Bonnet F (2001) L’ Etat d’exception (Presses Universitaires de France—PUF)
Saint-Bonnet F (2016) ‘L’abnégation Des Hommes, Le Sacrifice de La Légalité. La Grande Guerre et L’impossible Naissance D’un Droit Administratif D’exception’ VIII Jus Politicum 87
Schmitt C (2004) The theory of the partisan. Michingan State University Press, Michingan
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Saint-Bonnet, F. (2018). The State of Exception and the Terrorist Threat—An Obsolete Combination. In: Auriel, P., Beaud, O., Wellman, C. (eds) The Rule of Crisis. Ius Gentium: Comparative Perspectives on Law and Justice, vol 64. Springer, Cham. https://doi.org/10.1007/978-3-319-74473-5_4
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