Law in a Time of Emergency

This article examines the domestic and foreign policy responses of the Bush administration to the events of 9/11 and contrasts them with the primary responses of America’s democratic allies in Europe. Both sets of responses are understood through the lens of Carl Schmitt’s writing on the nature of the state of exception, which in many ways provides a blueprint for contemporary American conceptions of emergency powers while providing a notorious and unsuccessful attempt to justify emergency powers to contemporary Europeans. I argue that the divergence in the standard understandings of two formative historical events help explain European and American differences after 9/11: 1) explanations for the rise of the Nazi state and 2) reactions to the Cold War. America learned both from the 1930s and again during the Cold War that aggressive responses to incipient threats was the best way to avoid catastrophe. In Europe, the disastrous use of emergency powers in Weimar Germany cautioned against deploying the state of exception ever again. Instead, the development of international law seemed more promising as a way of preventing future crises. Because of these different understandings of how to respond in a time of crisis, the US turned aggressive, unilateralist and presidentialist after 9/11 while a number of America’s European allies saw dangers in the use of military power, in the expansion of executive powers and in the denigration of international law