David W. Bates

 

On his book States of War: Enlightenment Origins of the Political

Cover Interview of December 29, 2011

In a nutshell

States of War examines an age-old conflict within constitutional legal states—to what extent can political authorities violate the law in times of crisis, emergency, or war?

This question has haunted modern states since their founding in the revolutionary era.  Since 9/11, we have had to face this question repeatedly as state powers try to balance the demand for security, protection, and order with the foundational principles of constitutional rule, namely the priority of law and the rights of citizens.

My book challenges the dominant way of addressing the question.

Normally, we separate two different principles when dealing with the problem of emergency and war. We accept that there are legal principles meant to limit and constrain authority, but we also accept that one of the main functions of political authority is to defend the integrity of the political community. In other words, we admit that there are two separate logics at work within the modern state, one that is purely political, justified by an existential imperative of survival, and the other legal, legitimated by basic ideals concerning the rights of citizens. Recent debates over executive power in the US show clearly this division, as some argue for the relative independence of this authority from legal and constitutional restriction while others insist on the absolute sacred quality of individual rights and international law.

My argument is that the division between the political logic of sovereign authority and the legal logic of constitutional rule is artificial.

I show, through a reading of the most important constitutional theorists of the Enlightenment, that at the origin of the modern state, the ideas of sovereignty, law, and right were all deeply intertwined.

True, the logic of sovereignty was inherited from the absolutist states of the early modern period, and yes, the modern constitutional theories first developed in the Enlightenment were aimed at constraining arbitrary authority. However, we have misunderstood these influential eighteenth-century thinkers by emphasizing their concepts of legal constitutional structures (such as the division of powers).

States of War zeroes in on the origin of political community to see what role violence, war, and enmity play in the formation of a legal state. The surprising conclusion is that the most radical concept of political order, one rooted in a basic existential will to survive, turns out to be the foundation for the most radical democratic political order possible.