When Should Leaders Break the Law?

The past two years have brought us plague, civil unrest, and now, a large-scale war in Europe. Invoking the emergencies posed by such threats, governments extend their powers and curtail individual rights—banning speech and public gathering, spying on private communications, freezing bank accounts, and interfering with private commercial transactions. To defend their rights, citizens protest and engage in civil disobedience, suspending their obedience to law.

In any particular such confrontation, from the trucker convoy in Canada to demonstrations against COVID public safety measures, protesters may be acting on the basis of sound or foolish or even disturbing commitments. But anyone speaking out against the infringement of individual rights appeals to some of the deepest intuitions of our common sense as members of a liberal democracy. This regime is founded on the idea that individual rights, enumerated (though not exhaustively) by our constitution, have not only a primacy in orienting our politics, but also a kind of sacredness. While rights may seem to express the mutually agreed upon limitations which we impose on each other and on the state, enabling a precious protected zone of private life, they embody even more profoundly our shared ideal of human freedom, the cultivation of which is the aim of our political life.

The very possibility of our life in common, however, is periodically threatened by emergencies that require the suspension of these rights. During wartime, for example, it is generally understood that censorship, the suppression of suspect political organizations, and the abrogation of normal judicial procedures may all be necessary to the survival of the state. Yet we also recognize the possibility that, on the pretext of real or spurious emergencies, our rights, and the very character of our regime, may be undone. The threat of another “Reichstag fire,” a catastrophe or apparent threat for the sake of which politicians put aside respect for individual rights to such an extent that there is no hope of recovering them, looms over liberal democracies.

For radicals of the left and right, thinking about the problem of emergencies and their possible manipulation often passes through the Nazi jurist Carl Schmitt and the contemporary Italian philosopher Giorgio Agamben, who appropriated many of Schmitt’s insights for the sake of his own idiosyncratic leftist politics. From their perspective, it can appear that liberalism, with its focus on rights and norms to protect them, is simply unable to deal with emergency except through hypocritical dissembling. But, in his forthcoming book, Choosing War: Democracy Facing Its Enemies (Choisir la guerre: la démocratie face à ses ennemis) the French political theorist Alexis Carré, drawing on Leo Strauss’ and Raymond Aron’s critiques of Schmitt, argues that liberalism can confront this challenge (one that he considers is posed with special urgency by the paradigmatic emergency of war). To do so, however, liberalism must undergo a “refoundation,” one that will require liberals to change the way they think about both emergency and everyday politics.

Carré constructs his argument on both a historical and a philosophical level. The former traces how Strauss and Aron, secular Jewish intellectuals born, respectively, just before and just after the turn of the 20th century, were shaken by the rise of Nazism, which expressed itself most powerfully on the intellectual level in the ideas of Schmitt. One of the chief critics of Weimar democracy before 1933, Schmitt attempted in the initial years of the Third Reich to position himself as the new regime’s preeminent intellectual defender. He argued that liberal states like Weimar are grounded in the notion of the rule of law, which depends on (at least) two faulty premises. First, it supposes that laws can be universally applicable, ignoring that there inevitably will be some situations in which a given law must be ignored for the sake of public safety. Secondly, the rule of law untenably attempts to separate legislation and execution of law, as if agents tasked with the latter, from the head of state to the bureaucrat or police officer, could be conceived simply as carrying out what had been decided by the legislature. In fact, the agents of the executive branch, or indeed, the judiciary, never just carry out the law; they make decisions about which laws pertain to the concrete case before them, and how those laws should be applied. In certain cases, they suspend the laws, even the most fundamental ones, in order to preserve the state for the sake of which the laws exist.

For Strauss and Aron, Schmitt revealed that there was an ineradicable subjective element to statecraft—it is, in the end, always individuals who rule, not laws. Schmitt insisted that the fundamental question of politics then had to be “who rules?”—meaning who decides how to apply the law, and what constitutes an “emergency” that justifies the suspension of the normal legal order.

Strauss and Aron found Schmidt’s formulation strange on the level of theory and terrifying on the level of practice. If the answer to “who rules?” is, or at least can be, “Hitler,” whose rule was a disaster even judged on the terms set by the Nazis (bringing Germany to ruin rather than global hegemony), the question seems wrongly posed: Schmitt provided no basis for responding to the more salient question of who ought to rule. Indeed, in Weimar-era texts such as The Concept of the Political, Schmitt argued that politics was a distinct domain of human activity separate from others. In line with certain strands of Nazi thought, he seemed to exalt the arbitrary character of political decisions, making them appear to be products of will that did not require, and could not have, any underlying ethical foundation.

Out of their meditation on this problem—and attempt to provide liberal democracies with questions, and answers, that would arm it against their enemies—Carré develops a compelling new vision of liberalism. He warns that the utopia of a “rule of law” in which no emergencies or contingencies would require the suspension of norms and the application of subjective judgement has as its counterpart another utopia, which he calls the “city in discourse” (la cité en discours). In this utopia, traceable back to Plato’s Republic, there is no need of law to constrain the action of leaders, because the latter have already been selected and trained to be wise. A perfectly wise person would not need to have his freedom of action limited beforehand by laws, which are necessarily imperfect and correspond imperfectly to specific situations or to the common good. The wise person’s own sense of what must be done (and not done) would therefore offer a much finer set of “particular restrictions” on his action than the “general restrictions” of the law. For example, in certain dire but imaginable cases, the common good might require deceit, murder, or other acts that would otherwise be abominable and that one would never countenance inscribing in law as a general principle of action—but which a wise ruler would undertake regardless, for the benefit of all.

In the utopian “city in discourse,” the wise rule with no restrictions other than the ones imposed on them by their own virtue and understanding. This city, however, can never be built. We are, and will remain, as far from the rule of the wise as we are the rule of law. We cannot trust each other—or our leaders—to know and do what is right without the guidance of “general restrictions.” Nor can we hope that the latter will suffice on their own without some degree of wisdom in those tasked with executing and upholding them. Therefore, we seem condemned to “acknowledge the possibility that some people are sufficiently equipped to act with wisdom some of the time.” This means that we will have to pose the question “who ought to rule?” and answer, “people who are sometimes wise enough.”

The need for this constant back and forth between the rule of law and the wisdom of rulers who break the law, Carré argues, appears with spectacular clarity in emergencies where the law must be suspended, but also in countless everyday examples where the law cannot be applied successfully without some ethical and epistemic virtues on the part of its executor. As an example of the first case, Carré points to the examples of Lincoln’s suspension of habeas corpus during the Civil War, and of de Gaulle’s fleeing France in 1940 to continue the fight against Hitler from London. It is not legal for the president to suspend constitutional rights, detain suspects or replace civil with martial law. Nor is it legal for a military officer to desert his post, defying his government’s orders. If we want to justify these actions as responses to emergencies, Carré insists, we must believe that Lincoln and de Gaulle had in view the good of their societies—and we must believe that they both rightly understood that good, and acted rightly to advance it. Such a knowledge inextricably binds together the practical (knowing what to do in order to bring about a desired outcome) and the ethical (desiring the right outcome).

It is not enough to assert, Carré observes, that Lincoln’s and de Gaulle’s violations of the law were justified by the extraordinary circumstances of their respective emergencies. “The mere consideration of the circumstances,” he argues, “loses sight of the undeniable fact that the same measures, taken by another person, would have been the end of the republic.” That is, if Lincoln or de Gaulle had been would-be dictators (as their enemies often alleged), and exploited the emergency in order to seize power, then their violations of the law would not be justified. That they were justified depends on Lincoln and de Gaulle having been virtuous men; virtuous here meaning that they acted in accordance with the common good of restoring the form of government cherished by their compatriots. Lincoln, in the middle of the Civil War, and de Gaulle, after his victorious return to France, both held elections, and were prepared to accept defeat. Their being wise (knowing when and how to violate the law) was inseparable from their being moral, in terms defined by a visible and enduring commitment to the regime in the name of which they transgressed the law.

It is uncomfortable for liberals to talk about such nebulous qualities as wisdom, morality, and leadership. Norms—laws and rights—have the advantage of being clearly articulated. But, Carré insists, “however fragile we may suppose it to be, the only guarantee of an agent’s action in a situation in which he cannot be directly guided by a law is his moral character.” Such situations appear not only in emergencies, or in the situation of deciding whether a given problem constitutes an emergency, at the highest levels of the state, but also in the quotidian actions of low-level government agents.

Consider policing, which Carré selects deliberately as a fraught but necessary example. Police officers are responsible for upholding the law, while respecting the rights both of innocent people who might be victims of crime, and also of suspects. But the category of “suspect” is inseparable from suspicion, a subjective judgment exercised by the officer. The decision to observe, approach, question, etc., a particular individual “cannot be referred back to a general, neutral norm, because suspicion is not a legal concept.” The choice of who to suspect—a choice that is perhaps even more loaded in the particular subset of policing having to do with what we call homeland security, the prevention of terrorist attacks—“necessarily rests on the practical competence” of individual agents. We may well wish that our police were more competent and moral—that is, wiser—but these qualities, while they perhaps can be selected for among, and educated into, recruits to the police, cannot be replaced by a set of rules, however comprehensive, banning or encouraging “profiling” of subjects or placing limits on who can be suspected of what under which circumstances, and how that suspicion can manifest itself on the part of an officer.

From the vantage offered by Carré, it appears that, whether we are confronting an emergency on the scale of COVID, or one of the everyday situations in which the application of the law requires an individual’s own judgment, the most important question is not whether the law—or even individual rights—have been violated, because they inevitably will be. Nor is the question whether the crisis is a genuine one or a “Reichstag fire,” as if there were an external objective measure that could settle the issue. The question must be whether those who violate the law—whether those who are charged with deciding when and how the law may be violated—are “wise enough” to be trusted. Asking this question with reference to own current and recent leaders, Biden and Trump, must elicit bitter laughter.

Carré calls for a “refoundation,” “renewal,” and “rearmament” of liberal democracy around the insights opened by Strauss’ and Aron’s response to Schmitt’s analysis of liberalism’s apparent (but only apparent) incapacity to grapple with emergencies. This new understanding of liberalism, true to the elitist orientation of Strauss and Aron, particularly entails a focus on the moral education of a leadership class whose can see further than the narrow, self-interested horizon that seems to be predominant in modern capitalist societies.

Giving his analysis a more democratic bent, we might say that Carré shows us not only that we need wise leaders and agents of the state, but also a citizenry that can recognize wisdom among potential leaders. Just as leaders may need a certain kind of education to exercise wisdom, so too do ordinary citizens need an education to wisely choose them. Furthermore, insofar as the “common good” for the sake of which leaders must sometimes violate laws and rights expresses what citizens understand to be the purpose of their political life together, the quality of their leadership will reflect the clarity of that understanding, which must be refined, or even produced, through education.

Liberals can therefore ignore the moral education of neither elites nor of ordinary citizens. Nor can they ignore the need for cogent articulation of the aim of our kind of society. If we want to think our way through the apparent tensions that appear between maintaining our rights and preserving our state, we can only do so if we see both as means to a higher end: the creation of wise, and (only) therefore free, individuals. To strengthen and multiply this human type, the self-directed person who can act rightly (effectively for the common good) with a minimum of rules, is therefore the real mission of liberalism. Democratic liberalism insists that such people can and must be found not only at the helm of the state, but in every walk of life.