Lon Fuller, one of the key proponents of procedural Natural Law theory, proposed a significant relationship between Law and Morality. For Fuller, there were two classes of Morality that formed the foundation of Legal Jurisprudence, Morality of Aspiration: the morality of excellence driving humans closer to their fullest potential and Morality of Duty: essential moral requirements to preserve and maintain ordered society. Fuller’s perspective of the law also houses an ‘inner morality of the law’, which entails fundamental principles such as the law must be general, public, prospective, coherent, clear, stable, practicable and implementable. These principles constituted a morality of respect for the freedom and dignity of the agents addressed by the law. According to Fuller, any legal system that violated any of these principles wouldn’t be deemed a legal system at all.
This article challenges the Fullerian perspective of law on two fronts — first, the case for emergencies and suspension of the Rule of Law, and second, the capricious quality of morality in the geopolitical system.
Emergency and Natural Law
Lon Fuller, unfurling the concept of Legality as a ‘Practical Art’, claims that there may arise certain circumstances wherein the complete details of the law may have to be kept away from the public and in secrecy. According to him, a circumstance entailing the secrecy of a certain law may arise due to sheer grim necessity. These domains can be interpreted to be national security, military research, and emergency situations.
What seems implicit here is the discretionary powers of the state when deciding such a situation. The proclamation of any emergency or any situation regarding urgency and secrecy can only be made with the powers vested in the sovereign-state. Fuller concedes to the suspension of his principles of generality, public promulgation, and stability from the ‘inner-morality’ of the law for the sake of urgent matters.
Friedrich Hayek, infamous economist and legal theorist, too acknowledges that emergencies could occur and indicates that measures taken to limit their effects could put freedom at risk. He claims,
“Not only is liberty a system under which all government action is guided by principles, but it is an ideal that will not be preserved unless it is itself accepted as an overriding principle governing all particular acts of legislation. Where no such fundamental rule is stubbornly adhered to as an ultimate ideal about which there must be no compromise for the sake of material advantages—as an ideal which, even though it may have to be temporarily infringed during a passing emergency, must form the basis of all permanent arrangements—freedom is almost certain to be destroyed by piecemeal encroachments (Hayek, The Road To Serfdom)”
He further adds that even the most fundamental principles of a free society may have to be temporarily sacrificed when it is a question of preserving liberty in the long run, as in the case of war.
Carl Schmitt, the German jurist and political theorist, claimed that the capacity of decision-making and discretion in moments of indeterminacy and urgency evinces the idea that sovereignty resides ultimately in that power that can declare and enforce the state of exceptions and suspend the constitution in an emergency. Moreover, this declaration cannot be derived from extant legal norms or standard procedures of decision-making. For Schmitt, the precondition as well as the content of jurisdictional competence in cases of emergency must necessarily be unlimited. From the liberal constitutional point of view, there would be no jurisdictional competence at all. The only guidance the constitution can provide is to indicate who can act in such a case. Therefore, it may be argued that Fuller’s natural law may only function under normal circumstances, and these circumstances themselves may be deemed ‘normal’ or ‘abnormal’ by the sovereign state themselves.
Frederick Hayek replies to Schmitt,“Since legislators, as well as those to whom the administration of the law is entrusted, are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough.” (Hayek, The Road To Serfdom)
However, Hayek doesn’t confront the dilemma of compliance of existing rules or the greater deference to political authorities to solve the crisis, the latter of which Schmitt prescribes to.
Hayek and Fuller concede to the necessity of the sovereign’s intervention and discretion in times of emergency and urgency. For Hayek, a check on the discretionary powers is significant and for Fuller suspension of certain ‘inner moralities’ of the law would be a possibility in times of exigency. However, Hayek and Fuller do not consider the aftermath of such legislation in the post-emergency period. Schmitt’s conception of deference to political authorities to the extreme, claiming that a sovereign decides on the measures of exception, effectively explains this concept.
The ramifications of the above legal discourse can be observed in the aftermath of the attacks of September 11, 2001, in the United States. A state of emergency was declared by the Bush administration. The immediate legislation was the creation of the Department of Homeland Security to protect the borders and citizens of the country. Under the guise of a ‘National Emergency’, declared by the sovereign solely, the PATRIOT Act was formulated. Senators claimed that most of them hadn’t even read the bill before it was passed in the Congress, and the Bush administration used the opportunity of the attacks to pass the bill unopposed. The FBI used the PATRIOT Act to tap phones, voice mails, and digital activity of ‘suspicious’ individuals. The Humanitarian Law Project claimed that the FBI obtained one million financial, credit, employment, and in some cases, health records in Las Vegas alone. The Act also allowed for indefinite detention based on suspicion, especially in the case of immigrants. The PRISM program, another off-shoot of the Act, was brought to public light by Edward Snowden, revealing that the government had access to servers of all internet platforms and was collecting and collating data on users across the globe. The violation of several articles of the American constitution, coupled with extrajudicial arrests and detentions, mark the purge sparked by the PATRIOT Act in American Society. Even though 9/11 was an emergency declared in 2001, the PATRIOT Act’s provisions were renewed earlier this year, under the veil of national security. Hayek’s fear of an ‘unregulated’ sovereign and Fuller’s loss of ‘generality’, ‘ publicly promulgated’, and ‘relatively constant’ are marked in the protraction of the PATRIOT Act decades after the declaration of an emergency.
On a contemporary note, the current crisis and exigency of the Covid-19 pandemic propose a similar conundrum. The Indian government, for instance, launched an ‘e-pass system’ to enable contact tracing through the Aarogya Setu application. The ‘emergency measures’ which require individuals to surrender their civil liberties may be further held to surveil citizens extensively long after the pandemic recedes. The timeline of the ‘emergency’ is also under the discretion of the sovereign. Thus, if the citizenry is made to accept a deviation from the rule of law at times of crises, the sovereign has an incentive to perpetually hold the state in an emergency to advance their own and vested interests. An example of such a misuse of power is seen with Viktor Orbán of Hungary, who decided to rule by decree after declaring an indefinite state of emergency in the country. The EU had expressed its concerns regarding the depreciation of the rule of law and democracy in Hungary previously. The new legislation to help Orban rule by decree and the reluctance to define the time period of the emergency grants a carte-blanche to the government to forego human rights.
International Humanitarian Law (IHL) or Jus in Bello establishes the code of conduct of parties engaged in war. At the centre of the IHL resides dignity, and the preservation of the dignity of an individual is paramount. For Fuller too, dignity resides at the core of the principle of reciprocity, wherein an individual is deemed to be autonomous and capable of free choice (Lon Fuller, The Morality of Law).
One of the key features of International Humanitarian Law is the Geneva Conventions. The Geneva conventions of 1925 state “the use in war of asphyxiating, poisonous or any other gases is condemned” and the Chemical Weapons Convention(CWC) of 1997 holds that “Each State Party undertakes not to use riot control agents as a method of warfare.” The rationale behind these restrictions on chemical weapons is preserving dignity to live through averting death, temporary incapacitation, or permanent harm to humans or animals. Weapons which impede on this autonomy shall be deemed immoral and a breach of the individual’s dignity.
India has ratified and implemented the CWC and Geneva Conventions through the
India’s Chemical Weapons Act (2000) which outlines that “No person shall use riot control agents as a method of warfare or assist, encourage or induce, in any manner, any person to engage in the use of any riot control agent as a method of warfare.”
Tear gas, however, has been a vital tool used by law enforcement in India for crowd control and dispersion of protestors. The Delhi Police reportedly fired over 450 tear gas canisters during the CAA-NRC protests in the capital. The tear gas canister symbolizes an explicit odious instrument of control the state must deploy in order to regain power over its citizenry. Edgar Jones highlights that the panic and fear caused by the act of being choked and strangulated is intrinsic to coercive control. Interestingly, there is no law that mandates the use of tear gas as riot control, and therefore presents another blindspot for the sovereign to exploit.
There is a significant departure from the morality of dignity, highlighted by the International Humanitarian Law, when the state uses tear gas on one’s own citizens. The question arises whether one’s own nationals are not subject to the dignity one’s enemy soldier is? If morality seems to navigate and fluctuate geopolitically and its application on local populations is justified as a legitimate method of crowd control, it is evident that the sovereign holds the power to determine the moral basis for its actions. Another imperative consideration is that of group-moralities wherein states agree to the morality of a certain act enforced within the group. The IHL is a group of sovereigns that have come together to concede that tear gas encroaches on the dignity of an individual; however, their actions outside the group do not have a moral scale or instrument to be judged by.
The sovereign-state evidently reigns supreme over the law in emergency situations and geo-political developments. The state defines the moral basis of the law and the limits and constraints of said moralities. The state also holds a higher moral stature than its citizenry and is abdicated of the morality it coerces individuals to prescribe to. H.L.A Hart’s criticism of Natural law for the absence of instruments to judge unscrupulous laws is essential when Fullerians claim that these apparatuses are not legal systems. The ascendancy of the sovereign-state over the legal system in line with the Positivist perspective of the law seems evident in praxis.
Ishaan Khosla is a final year student of Politics and International Relations at Ashoka University. His research interests lie in the areas of Jurisprudence, Identity Politics, and Nationalism. He is keen to read Law and Jurisprudence in the future.