By NEHAL BHUTA
Review of Reason of State: Law, Prerogative and Empire, by Thomas Poole
Cambridge: Cambridge University Press, 2015
What is the point of thinking about reason of state today? The concept has, at least since the heyday of European liberalism and its confrontations with the decaying vestiges of absolutism, emitted a strong odor of disreputableness. To invoke high reasons of state as a justification for policy or action was to align oneself with the gorgon head of power, rather than the rule of law; with expediency and exception over morality and norm; with secrecy and esoteric judgment instead of publicity and democratic deliberation. A mid-century ordo-liberal such as Hayek could complain that raison d'etat was nothing less than the apotheosis of collectivist ethics, a symptom of the very totalitarian catastrophe from which Europe had barely recovered: "There can be no limit to what [the collectivist state's] citizen must be prepared to do, no act which his conscience must prevent him from committing, if it is necessary for an end which the community has set itself..." (The Road to Serfdom, 1944 edition, University of Chicago Press, 147). The voice of 20th century US progressivism, John Dewey, - no opponent of state intervention - complained nonetheless that "conceptions of 'The State' as something per se, something intrinsically manifesting a general will and reason, lend themselves to illusions" (The Public and its Problems, Later Works, Vol. 2, Jo Ann Boydston ed., Southern Illinois University Press, 278).
But it is by now trite to observe that we denizens of liberal democratic states live in an epoch in which the problematics closely associated with reason of state, have returned with a vengeance: emergency, exception, rights-limiting and rights-abrogating programs of detention, surveillance, interrogation and lethal force - all predicated in one form or another on a topology of arguments about the necessity of such measures, their foundation in a telos which stands above or behind lex scripta, and or upon arguments extolling the desirable speed, rationality, efficacy or better judgment that ensues from legally expanding the vasculature of the executive. More blood to the decision centres of the state through inflated arteries of legal authorization may generate a risk of thrombosis, but may also save the patient.
In his explanation of the UK government's August 2015 targeted killing of two of its citizens fighting with ISIS in Syria - despite the express denial by Parliament of any authority to conduct operations outside Iraq - Prime Minister David Cameron reminded the House of Commons that a year earlier he had reserved to the executive the right to strike within Syrian territory "if there were a critical British national interest at stake or there were a need to act to prevent a humanitarian catastrophe". In those circumstances, "you could act immediately and explain to the House of Commons afterwards. I am being very frank about this because I do not want to mislead anybody." (Hansard, 26 September 2014, column 1265). Indeed, when the UK did ultimately conduct a drone strike in Syria in 2015, Cameron stated that Parliamentary authorization was not necessary for acts of war amounting to self-defence against an imminent attack and invoked Article 51 of the UN Charter as the legal framework governing the strike. Although he did not use the word "prerogative," Cameron's language clearly invoked the residual power of the executive to act in the absence of parliamentary authorization and despite a clear stipulation by parliament that any strike in Syrian territory required a new vote in Parliament.
Cameron's argument is noteworthy because it highlights two kinds of reasoning locatable within the family history of reason of state thinking. First, that the safety of the people is the supreme law, even if to preserve it one must exceed or otherwise break an existing positive norm or permission duly authorized by constituted powers. Second, that this place beyond the legal rules is not necessarily lawless, but governed by higher principles which could be amenable to juristic reasoning (such as the legal concept of self-defence in international law.) Exactly what it is that inhabits this space above or beyond the positive rule is, of course, the crux of the problem: the Sovereign power (Bodin), the Nation (Vattel), Constituent Power (Sieyes, Schmitt), the General Will (Rousseau), or even a Grundnorm (Kelsen) or Public Reason (some species of Rawlsians) - all candidates in the history of political thought, and each with their own problematic ontologies. Yet, despite the evident and seemingly endless polemicization of the concept of reason of state, we cannot successfully dissolve or banish it. Like the repressed, it returns, and now more than ever it appears to be a concept whose time has come (back).
The persistence and re-emergence of reason-of-state arguments in liberal democracies is the essential context for Thomas Poole's ambitious and thoroughly researched book. The book is not exactly an intellectual history, although it makes considerable use of other scholars' intellectual-historical research; nor is it exclusively a work of law or political theory, even though its principal figures are political and legal thinkers. It is an eclectic work that follows an arc of British political and legal thought about the state, sovereignty, prerogative and empire, essentially through the reconstruction of the theories of certain key figures: Hobbes, Harrington (and some lesser known republicans), Smith, Hume, Burke, Mill père, Mill fils, Schmitt, Hayek and Oakeshott, with Machiavelli and Bentham making cameo appearances.
The aim of the reconstruction, ultimately, is somewhat diffuse. Poole, Professor of Law at the London School of Economics and a specialist in public law, is on the one hand addressing insular British debates about the nature of the state, the common law constitution, prerogative and the rule of law. In respect of these debates, he wishes to demonstrate that controversies about the British state, sovereign power and public law since the seventeenth century were always in part debates about empire and its government. Poole thus contends that the "island story" told about British public law is limited if not fallacious; he shows quite successfully that imperial rule and imperial right were inextricably bound up with British constitutional discourse from the early modern period, and frequently bequeathed the very circumstances under which legal concepts such as prerogative, sovereignty, constitution and state, were litigated and forged.
Empire was the central problematic for theorizing the nature of the British state and polity, either by recourse to the exemplary martial virtue of Rome (the republicans theorists of the 17th century) or as a increasingly complex and hybrid legal-political reality that seemed to threaten the integrity of legal order and political virtue at home, because of its licensing of despotic domination and commercial monopoly abroad.
To this end, Poole devotes considerable space to Hume, Smith and Burke's reflections on empire and their anxieties about the extent to which colonial rule generated corrosive practices and habits that augmented the danger of untrammelled sovereignty, self-interested and corrupt official conduct, and untutored illusions about the malleability of politics. An interesting continuity that emerges from Poole's reading of these thinkers is their attempts to distinguish "good" from "bad" reason of state. "Good" reason of state, in Smith's critique of mercantilism, is the use of state power to mitigate rather than concentrate the power of merchants and privateers, in order to ensure the well-being and security of individual subjects in general. "Bad" reason of state pursues military adventure, conquest and commercial monopoly in the name of the state's interests, but in fact contributes to the benefit of a few and at grave cost to constitutional liberty. Burke's excoriating critique of colonial administration and of the French revolution are plausibly understood as an attack on a certain kind of reason of state thinking - one which emphasizes the malleability of human societies and political institutions, wielding devastating force in the name of the public good in order to reshape them in the name of rationalist ideals. But this force is instantly corrupting, oppressing and denaturing the people and societies that are subjected to it, and creating a class of state officials accustomed to despotic behaviour who return home schooled 'in avarice, rapacity, pride, cruelty, ferocity, malignity of temper, haughtiness, insolence' (Burke, quoted in Poole, 158). By contrast, the reason of state embedded in the jus publicum europaeum of the eighteenth century, which aimed to conserve old European constitutional orders and united them through customs of law and diplomacy, was to be lauded as a force for peace and stability - preserving the centuries-long incremental achievement of political culture as a bulwark against violent disorder and insecurity.
A second objective of these reconstructions is to maintain the contention that reason of state is a concept that can do some work for us as we grapple with contemporary problems of emergency, exception and security. Poole argues that 'reason of state offers a number of advantages for the constitutional theorist,' and 'rather than being something exceptional that reaches outside legal orders for their inspiration, reason of state is generally built into the institutional structures and deeply embedded within the everyday working life of the modern state' (4, 6). Poole aims to hitch this theoretical cart to his historical horses, and show us how 'a continuous tradition of reflection on reason of state within British constitutional thought ... helps us identify resources internal to liberal constitutional theory capable of handling the reason of state questions that face us today' (7). He further wants to demonstrate that reason of state is a reflexive concept that 'navigates the borders between the national and international, between the internal construction of the state and its external actions' (9).
In this ambition, the book is not entirely satisfying. The amount of conceptual work we are invited to expect from reason of state is not, ultimately, cashed out in a concrete manner. It seems to me that one reason for this is that each chapter becomes somewhat hermetic in its reconstruction of the specific figure, and there is no constant gravitational pull towards the concept of reason of state. The chapters are ornately and deeply researched, full of historical context and the most up-to-date scholarly literature; they are impressive scholarly achievements in their own right, and the chapters on Hobbes, Harrington and Hume are a particular pleasure to read. They can and should be read by anyone working on these writers in relation to constitutional theory. But insufficient space and energy is devoted to sharpening the conceptual development (dialectical or otherwise) of reason of state, which might have allowed better to grasp how, as a concept or constellation of related concepts about the state, it can help us think with and against the historical formations of reason of state in order to navigate the present.
One conclusion that seems open to Poole, but which he does not take up, is the intrinsically polemical quality of reason of state within any given epoch such that its meaning and determinacy is almost always ascertained by the counter-concepts against which it is arrayed by the writer under consideration. In his readings of the British republicans, Harrington, and Smith, Poole elucidates their considerable efforts to distinguish good from bad reason of state, often serving as an index of arguments about the legitimacy and quality of the state. Reason of state argumentation was a kind of normative argument that enacted state concepts and state theories, to reject them or to advance them; the concept was a historical expression of state-theoretical thinking - a kind of marker of the historicity of the state in different periods - as well as a part of the grammar of state-ness which all state theory performs. In his critical review of Meinecke's book on The Doctrine of Raison d'Etat and its Place in Modern History (English trans. 1957), Carl Schmitt catalogued the many antitheses that appear in writings on reason of state over several centuries and discussed by Meinecke ("On Friedrich Meinecke's Machiavellianism (Idee der Staatsräson)," translated by Dr. Benjamin Schupmann). These include the oppositional pairings of Reality v. Ethics, Politics v. Morals, Power v. Right, Irrational v. Rational, Evil v. Good, Normal v. Abnormal. If we are asking the question, "what is the value of reason of state thinking today?", we need to identify more specifically what the term is used today to denote, in opposition to what, and in light of what duelling conceptions of the state and its purposes.
In the concluding chapter of the book, Poole returns us to the present, and some of themes and questions opened in his first chapter. Here he comes closest to identifying what he considers to be the content of the contemporary concept of reason of state: in the post-1945 "constitutional order of which the concept of human rights forms a vital part, ...[there is] a clear, if implicit, conception of the state ... and the role that reason of state plays within it" (253). According to Poole, this conception consists of the following tenets: that the welfare of the people means the material and psychological well-being of its people; that the state exists in a posture of peace, using armed force only in self-defence; that the conduct of warfare is regulated by a comprehensive body of legal rules; that human rights law applies in both war and peace; that the governing authority of the state is interconnected with private networked power and transnational private norm making. Flowing from this conception of the state, reason of state argumentation is heavily legalized: it erupts as claims of exception or abnormality vis-a-vis the norm, but in a form that is arguably countenanced by the norm itself through explicit provisions for suspension, derogation, limitation and so on. Thus, both human rights law and public law endogenize reason of state-type claims, especially through techniques such as balancing and proportionality. Reason of state takes predominantly a legal-logical form, predicated on a differentiation between the normal and abnormal, but in which the abnormal does not connote a realm of pure decision, arbitrariness or miraculous happenings. Instead - to stretch further the vascular metaphor used earlier - it lies as a potential edema within the circulatory system of the modern state, threatening ischemia but potentially able to be managed, metabolized and diffused through institutional mechanisms and juridical techniques.
The oppositions that characterize contemporary reason of state are Rule v. Exception, Norm v. Abnormal, Duty v. Discretion. But the actors that may correspond to these antinomies can no longer be grasped as Courts v. the People, Courts v. Executive, or Constituted powers v. Constituent power. Instead, we have multiple and unstable equilibria between loci of decision and expertise distributed across the legal and political system. The question of who and what occupies the apex of the hierarchy at a given moment of uncertainty or crisis cannot be resolved by either a pure normativism nor a political substantialism; rather normativism and substantialism are among many possible strategies pursued by actors in the struggle to claim the priority of their expertise, interests and vision as the right response. The struggle may well be bitter, and may easily spill beyond the conventions of ordinary political discussion and deliberation, polarizing and stratifying both within and without the structures of government.
To this end, Poole's qualified hope that giving "greater legal specification [to] and channel[ing]" reason of state through "normal constitutional processes," may engender institutionalized propensities for reasoned deliberation, is a desirable safeguard - a laudable perspective which, if internalized, may amount to an ethos of restraint that curbs and scrutinizes claims of exceptional measures. But as his final chapter demonstrates, an ethos it is, rooted in fragile and uncertain phenomena such as "political culture" (287) and historically-endowed languages and practices of political thought and action. It must be constantly renewed and renovated in the face of accelerating crises, a ship always to be rebuilt on stormy seas. Poole's book merits careful reading and engagement not least because it can help us better understand what we are doing when we argue about norms, emergencies and reason of state, while the stately vessel heaves and yaws beneath our feet.
Posted on 11 January 2016
NEHAL BHUTA is Professor of Public International Law at the European University Institute.