Meditations on the emergency

Today, it is common to discuss the state of emergency or the state of exception primarily with reference to the German jurist Carl Schmitt. One of his best known books, Political Theology (1922), begins with the pungent phrase, “Sovereign is he who decides on the exception.” But Schmitt is only one in a long line of jurists and philosophers—to say nothing of politicians—who have considered the problem of the emergency. Much of the fundamental work on the question was done, frankly, decades and centuries before Carl Schmitt. To discount the concept of the emergency or to attempt to conflate it with Schmitt’s problems (the most serious of which occurred for the most part after 1922) is, then, to depart from Catholic jurisprudence.

Consider the great discourse of Don Juan Donoso Cortés to the cortes on January 4, 1849. There one finds an important precursor to Schmitt’s Political Theology—a debt Schmitt frankly acknowledges at the end of his book. For Donoso, when society confronts mortal peril, if strict adherence to the law is sufficient to overcome the peril, then the law should be strictly adhered to. However, if such strict adherence to the law is not sufficient, then one must look beyond the letter of the law. This then is the emergency, articulated by a Catholic politician and political theorist beyond reproach. 

Donoso makes an analogy that—in 2020—no doubt has taken on greater significance than when he made it in 1849. He compares, not for the first time, society to the human body. A disorder in the state is like a disorder in the body. In one stage of the illness, it might be spread throughout the body; this Donoso likens to individuals. The immune system of the state can function normally according to the usual processes. But when the illness enters into its acute stage, when it becomes manifest in revolutionary organizations, the resistance to such organizations must be consolidated into one point, beyond mere legality. 

Certainly there are examples of this throughout history. On April 27, 1861, Abraham Lincoln authorized General Winfield Scott to suspend the writ of habeas corpus in the vicinity of the military line running from Philadelphia to Washington, D.C., if he encountered resistance connected with the insurrection then underway. In his July 4, 1861 message to Congress, Lincoln acknowledged that the legality of his order to Scott had been challenged. Lincoln’s response echoes Donoso’s argument: it was necessary for him to suspend the writ to meet the emergency and ensure that all the laws of the United States were faithfully executed, regardless of the letter of the (ambiguous) law, rather than to allow all of the laws to lapse. The resistance to the insurrection was therefore consolidated into one point, one person, beyond the letter of the law. 

It is also worth noting that, in the course of making his argument, Donoso summarizes the key point of Political Theology in a paragraph, analogizing this to the divine order. It is true beyond doubt that God has ordained laws for the government of the universe. However, God intervenes in those laws—that is, outside the order of secondary causes—from time to time (cf. ST Ia q.106 a.6 co.). Likewise, Donoso argues, in some cases, it is necessary to act outside the order of the fundamental laws. To deny this, he asserts not without sarcasm, is to attempt to govern with fewer means than God. 

But one must look even earlier than Donoso and Lincoln to find important sources for the idea that necessity knows no law. That precise formulation, necessitas non habet legem, probably originated with the great canonist Gratian. The canonist Kenneth Pennington has argued that Gratian first articulated the phrase in his first recension (C.1 q.1 d.p.c. 39). It remained in Gratian’s monumental work in the second recension (C.1 q.1 d.p.c. 39, Friedberg C.I.C. 1:374). However, according to Pennington, the concept had been circulating among canonists probably since the time of the Venerable Bede. The exact history is murky, taking a detour through a letter of Pseudo-Isidore, but it is certain that Bernard of Pavia identified a similar concept—quod non est licitum lege, necessitas facit licitum—in a homily of Bede’s on St. Mark. He included it among the regulæ juris in his influential Breviarium Extravagantium (I Comp. 5.37.12; Friedberg Q.C.A. 65). Bede’s formula, no doubt by way of Bernard, found its way into the regulæ juris at the end of Gregory IX’s Liber Extra (X 5.41.4). 

Furthermore, in Thomas Aquinas one finds a highly developed concept of the emergency. For one thing, Aquinas held, with an analogy to the family, city, and kingdom, that a higher cause is not contained under the order of an inferior cause—causa superior non continetur sub ordine causae inferioris, sed e converso (ST Ia q.105 a.6 co.). Thus one finds in Aquinas an important antecedent to Donoso (and Carl Schmitt, for that matter) on the analogy between miracles and acts by the ruler outside the legal order. Indeed, one may say on this precise point, Donoso and Schmitt do little but expand upon Thomas’s dicta: almost everything one gets from Donoso and Schmitt one can deduce from Thomas here. But this is not the end of Aquinas’s treatment on emergencies.

For Aquinas, law is simply a dictate of  reason regarding action (or inaction) in particular circumstances (I-II q.90 a.1 co; q.91 a.3 co.). Of course it must be ordered to the common good (I-II q.90 a.3 co.) and lead men to virtue (I-II q.95 a.1 co.). One cannot do something intrinsically immoral—though this is generically true. Aquinas, following Isidore, notes that laws ought to be framed for the community (I-II q.96 a.1 co.), capturing many foreseen situations (I-II q.96 a.1 co. & ad 2). But it stands to reason that there will be unforeseen cases or cases in which the general rule no longer serves the common good (I-II q.96 a.6). In such cases, it is lawful for anyone to act beside the letter of the law if there is not sufficient time to refer the matter to the legislator (I-II q.96 a.6 co.). 

Aquinas, using the example of a besieged city (an example that would have been fresh to many of his Italian readers, recalling Frederick II’s sieges), offers the example of a law dictating that the gates of the city are to be kept closed (I-II q. 96 a.6 co.). That this is ordered to the common good is obvious. However, if the city’s troops are in retreat, to keep the doors closed would be to see the troops slaughtered by the enemy—also very much contrary to the common good. (There are obvious echoes here of Donoso’s mortal peril to society.) Aquinas quite reasonably holds that in that case, it is licit to open the gates and let the troops in. The lawgiver ultimately had the common good in mind, and violating the letter of the law in that case serves the common good. Obeying the letter of the law would be to imperil the common good, possibly irrevocably.

Aquinas says, “Si vero sit subitum periculum, non patiens tantam moram ut ad superiorem recurri possit, ipsa necessitas dispensationem habet annexam, quia necessitas non subditur legi” (“If, however, the peril be so sudden as not to allow of the delay involved by referring the matter to authority, the mere necessity brings with it a dispensation, since necessity knows no law.”) (I-II q.96 a.6 co.). It is clear from this statement, then, that Aquinas fits into the tradition of Bede, Gratian, and Bernard of Pavia. (And, for that matter, Bernard of Parma in the Glossa Ordinaria on X 5.41.4). In other words, one cannot in this matter set Aquinas against the jurists: Aquinas’s thought on emergencies follows the jurists’ perfectly. One might even say that one cannot rightly understand Aquinas’s thought on this question without familiarity with the jurists who came before him and worked alongside him. 

At any rate, as we see, Aquinas thinks that this is ultimately an exception itself; if the case is not urgent, one ought to approach the lawgiver, who has the power to dispense from the letter of the law (ST I-II q.96 a.6 co.). The whole question turns, really, upon this point. Aquinas holds that the lawgiver is not bound by the law’s coercive power (ST I-II q.96 a.5 ad 3). Citing a decretal of Innocent III, however, he holds that the lawgiver is subject to the law’s directive power: quod quisque iuris in alterum statuit, ipse eodem iure uti debet (“whatever law a man makes for another, he should keep himself”) (cf. X 1.2.6; Friedberg CIC 2.9). But he also holds that the lawgiver is above the law and can change it and dispense from it as necessary—Est etiam princeps supra legem, inquantum, si expediens fuerit, potest legem mutare, et in ea dispensare, pro loco et tempore (“Again the sovereign is above the law, insofar as, when it is expedient, he can change the law, and dispense in it according to time and place”) (ST I-II q.96 a.5 ad 3). And, he notes elsewhere that the lawgiver—not an inferior judge—has the power to dispense from penalties in the law in particular cases (ST II-II q.67 a.4 co.). 

It is therefore clear that Aquinas holds that, in case of emergency, the lawgiver has full power, subject to the eternal and natural law, to legislate for the common good. Others are able to act beside the letter of the law when circumstances mean that a general ordinance will be contrary to the common good, but only when they cannot consult the lawgiver. While the lawgiver ought to be obey his laws, he is free to change them or dispense from them as expedient in a given time or place. The lawgiver, for Aquinas, has all the power necessary to meet an emergency. The lawgiver cannot, of course, do something intrinsically immoral to protect the state in emergencies, but this leaves open broad possibilities for defense. 

There may well be polemical reasons—rooted in concrete historical circumstances—to conflate Carl Schmitt with the concept of the emergency or the lawgiver’s power in an emergency. Certainly such tactics are convenient. However, the concept of the emergency and the power to meet the emergency are deeply Catholic. Indeed, despite the sense that the principle was fully developed in the Roman law, it is more likely the case that the canonists of the 12th and 13th centuries articulated clearly the maxim necessitas non habet legem, which is the classical formulation of the idea. These jurists were, in all probability, relying on earlier sources like the Venerable Bede. Thomas Aquinas relied on these jurists in developing his own finely wrought sense of emergency and emergency powers. While there may be more recent examples—Donoso’s brilliant political theology or Abraham Lincoln’s clear logic—the basic ideas at play in this realm are the ideas synthesized by Gratian and his successors.

To abandon this deeply Catholic thought is to go where one does not—or at least should not—want to go.

Pat Smith