State of Exception

Chapter 10 of Law and Society Redefined highlights an intriguing and controversial provision of the state of exception. This state of exception is when sovereigns declare itself an exception from their own laws. Examples in the text include the arbitrary detention of suspected terrorists in Guantanamo Bay, and also the War Measures act, which came into effect in Canada in the 1970s. The state of exception allows the government to legally carry out policies and other actions, which are normally not permitted in society. This also allows them to bypass the adversarial system and detain people in a manner, which is against our charter of rights and freedoms.

These states of exception come into being when the government or political leaders believe that the situation at hand is deemed an exceptional state of affairs, and that rule of law in not adequate to solve the crisis at hand. For example as highlighted in chapter 10, the War Measures act came into effect after a separatist movement threatened the lives of government officials. At this time government officials were kidnapped and detained until the government met their demands. This case depicts circumstances, which are extremely rare in a democratic country such as Canada. Since this crisis was completely out of the norm, and time sensitive the government had to react in a swift and effective manner to save peoples lives. In this case the rule of law and ordinary laws that govern our every day lives would have been ineffective because the procedural aspect is very time consuming.

A very important aspect of the state of exception concerns the legal status of the subjects involved. As seen in the detention of suspected terrorists in Guantanamo Bay it is very evident that their basic human rights have been violated due to the exceptional circumstances surrounding their detention. While the need for quick detention is necessary for some circumstances, the inhumane torture that was administered in the prison is inexcusable. Furthermore as Guantanamo Bay is not located on American land, and technically not considered a part of Cuba, the laws of the land are very unclear. This lack of clarity simply fuels the misuse of the state of exemption. This horrific treatment of prisoners creates circumstances in which the government is able to exercise a tremendous amount of power over people who are unable to seek counsel like all other citizens. I believe that although the state of exception is necessary in certain circumstances, similar to a leader being able to declare state of emergency in times of disaster, there always needs to be some rules put into place to protect human rights.

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One response to “State of Exception

  1. In discussing the invocation of War Measures during the October Crisis, you note that “This case depicts circumstances, which are extremely rare in a democratic country such as Canada. Since this crisis was completely out of the norm, and time sensitive the government had to react in a swift and effective manner to save peoples lives. In this case the rule of law and ordinary laws that govern our every day lives would have been ineffective because the procedural aspect is very time consuming.”

    I have two questions:

    First, does this mean that any kidnapping of a government official or threat against the state could or should justifiably result in the declaration of a state of emergency? What should be the determining factor when invoking such legislation?

    Second, were the traditional powers of police ineffective during the October Crisis? How so? And, did the additional powers granted to police by the War Measures Act allow for the resolution of the crisis? In other words, did the War Measures act ‘work’ in this case?